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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Williams 4 May 2022 [2022] JRC 103 (04 May 2022) URL: http://www.bailii.org/je/cases/UR/2022/2022_103.html Cite as: [2022] JRC 103 |
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Before : |
R. J. MacRae, Esq., Deputy Bailiff, sitting alone |
The Attorney General
-v-
Simon Rhys Williams
Crown Advocate S. C. Thomas for the Attorney General.
Advocate A. M. Harrison for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1. On 28th April 2022, I heard argument in respect of the factual basis upon which the Defendant should be sentenced in this case and reserved my decision.
2. Owing to events which occurred on Sunday 15th August 2021, at the home which the Defendant then shared with his former partner of six years, the Complainant, the Defendant was indicted in this Court facing two counts of grave and criminal assault. On 7th April 2022, after a trial lasting three days, the jury found the Defendant guilty of common assault on Count 1 of the indictment and not guilty of grave and criminal assault on Count 2.
3. The Crown and the defence dispute the basis upon which the Defendant falls to be sentenced in respect of the jury's verdict.
4. The dispute between the parties engages Article 50 of the Criminal Procedure (Jersey) Law 2018 which has not previously been considered by the Court. It is appropriate to consider the terms of this Article and the principles under which the Court should act when it is engaged before turning to the nature of the dispute between the Crown and defence.
5. Both parties agree that Article 50 is engaged in this case by virtue of the dispute between the Crown and the defence. The purpose of Article 50 was, as is clear from its terms, to enable the Court, whether the judge alone in the case of a trial by jury, or the Bailiff and two Jurats in the case of trial by the Inferior Number, to communicate to the sentencing court, the members of which will not (in the case of trial by jury) or to some extent will not (in the case of conviction by the Inferior Number and sentence by the Superior Number) have witnessed the evidence at trial.
6. Although there is no similar provision in English law - which is unsurprising because the judge who presides over the trial will, in most instances, be the sole determinant of sentence - there is helpful authority in the case of Regina -v- King [2017] EWCA 128, in which the Court of Appeal considered how the court should act in the event of a dispute as to the factual basis of a jury's verdict. At paragraph 31 the court said:
7. I agree with the submission made by both parties that when the Court is considering communicating its view of the facts to the sentencing court under Articled 50, then it is necessary for the judge, if there is more than one possible interpretation of the factual basis of the jury's verdict to make up their own mind to the criminal standard as to that factual basis and correspondingly, if the judge is unable to be satisfied so that they are sure of that basis to pass sentence on the interpretation most favourable to the defendant.
8. The Crown says that there is more than one possible interpretation, on the evidence, of the jury's finding. The defence contend that in fact there is only one possible interpretation open to the Court - namely the defence version of events. Before examining in a little more detail the arguments arising from the competing accounts of the Complainant and the Defendant, both of whom gave evidence before the jury, it is appropriate to set out the written directions I gave to the jury on the law, where relevant, as both parties rely on those directions. For the purpose of publication, the identity of the Complainant has been anonymised.
9. At paragraph 29, the case against the Defendant was summarised. The defence rely on the last sentence of paragraph 29 as indicating that in order for the jury to have returned a verdict of common assault they must have rejected the Complainant's account otherwise they would have found the Defendant guilty of grave and criminal assault on Count 1. It is argued that that submission is supported by the verdict of not guilty on Count 2. The Crown rely on the penultimate sentence of paragraph 31, where the jury was in effect directed that if they thought the Defendant's account was or may be true then they ought to acquit him on the grounds of self-defence. The Crown argue that any conviction could only be consistent with the jury accepting the Complainant's account and the conviction for common assault merely reflects the fact that they were not satisfied, having regard to the way they were directed at paragraph 28, that this assault was a serious one, notwithstanding its nature.
10. Further, the Crown relies upon paragraph 36 in which the three verdicts open to the jury on both counts were set out - guilty of grave and criminal assault, guilty of common assault and not guilty.
11. I note from Archbold 2021 Edition at paragraph 5A-272 that in the case of Byrne [2002] EWCA Crim 1975, the Court of Appeal held that the sentencer should give a short explanation of the reasons for reaching their conclusion on the facts, but it is not necessary to review the whole the evidence. Archbold also states, on the basis of English authority, that the Court of Appeal will not interfere with a finding of fact made by the judge in such circumstances if the judge has properly directed himself, unless the Court considers that no reasonable jury could have reached the judge's conclusions.
12. Accordingly, it is not necessary to summarise the evidence in the case, and indeed it can be seen that I have already given a brief resume in this judgment of the prosecution case on Count 1 at paragraph 29 of the extract from the summing up above, and the defence case at paragraph 31.
13. The Crown reminded me of the whole of the Complainant's evidence and the Defendant's evidence in response, which corresponds in broad terms with the summary of the evidence which I read to the jury at the conclusion of the trial. The Crown place extensive reliance on the evidence of Dr Rud, a forensic medical examiner who examined the Complainant on the day of the assault. The body drawings produced by Dr Rud, which set out precisely what he found and his description of each injury were before the jury as were a set of photographs. Dr Rud found evidence of swelling indicating fresh bruising and said that the Complainant had "injuries in every area of her body". He also said, in respect of the bruising to the neck that this was a difficult place to bruise accidentally because it was sheltered by the shoulder and the head, and in this case there was bruising on both sides of the neck. This was said to be consistent with the allegation that, in the sitting room, the Complainant was pushed to the ground with the Defendant strangling her between his knees and then the Defendant putting his hands around her neck to the extent the Complainant could not breathe whilst he was shouting "Fucking choke". At this time the whole weight of the Defendant (some 23 stone) was on the Complainant. Dr Rud said the injuries to the arms were consistent with the Complainant being held by her arms and then being thrown to the ground as the bruising (which was significant) was accompanied by abrasions - the bruising may have been caused by a clench hold and the subsequent throw was consistent with the abrasions. The injuries to the Complainant's buttocks and shoulders were consistent with an impact with the ground, such as being thrown to the ground, and the chest injuries were consistent with being pinned to the floor by a knee. The Defendant accepted that most if not all of the injuries to the Complainant were caused in the incident.
14. The Crown observe that on any view the neck injuries must have been caused during the incident in the house (the subject of Count 1). As to the Defendant's account in respect of causation of the neck injuries, he could only point to his evidence that he "frogmarched" the Complainant out of the house, as referred to at paragraph 26 of the extract from the summing up on the law above. The Crown refer to the Defendant's police interview when he said that when he did this, he grabbed the Complainant "by the shoulders". In interview, he denied putting his hands around her throat and said he was "pretty confident" that his hands were on her shoulders. It is difficult to understand why someone wishing to propel the Complainant out of the house would have held her by her neck so as to cause the bruising that she sustained and, in any event, it was not the Defendant's case that he did in police interview. The Crown argue that the Defendant offered no real explanation for the neck injuries. Further, the Crown place reliance upon the contents of the Defendant's telephone call to the police which was transcribed and placed before the jury. This call took place within moments of the assault and during the call the Defendant said "I've held her down but she's wiggled out of that". This was inconsistent with his case at trial, but bore some relation to what the Complainant said happened to her in the sitting room.
15. The defence argue that the only possible interpretation of the jury's verdict is that they were not sure of the Complainant's evidence and thought that the Defendant was or may have been telling the truth about what occurred but were not satisfied that this did not amount to lawful self-defence. It is argued that the verdict of guilty of common assault in Count 1 was consistent with the force that the Defendant used, and such a verdict was consistent with the directions the jury were given in respect of self-defence and consistent with the verdict of not guilty on Count 2.
16. Having regard to all the evidence in this case and my assessment of the evidence of the Complainant and the Defendant, both in terms of what they said and how they both gave their respective evidence I accept the Crown's submission. I am satisfied so that I am sure that the factual basis upon which the Jurats should pass sentence is that the jury must have accepted the evidence of the Complainant in respect of what occurred in the property (Count 1) but were not satisfied - perhaps owing to the absence of a need for hospital treatment or the fact that the injuries were limited to bruising - that the injuries were serious and accordingly took the view that this assault was not a grave/serious assault but a common assault. I will direct the Jurats accordingly, and provide them with my summing up on the evidence to the jury, excluding any reference to the matters which gave rise to Count 2 in addition to any summary of facts that the Crown may produce.
17. One final matter raised by defence counsel is the word "may" in Article 50(3) which, it was argued, indicates that the Jurats are entitled, if they wish, to reject the view of the facts communicated to them by the trial Court. I do not think that is correct. I think the word "may" in Article 50(3) is permissive in the sense that it indicates that the sentencing court may, notwithstanding such other material placed before it, proceed to sentence on the basis of the view of the facts communicated to it by the trial Court. It would be perverse for the sentencing Court to reject the view of the facts communicated to it under Article 50, although that would not, in my view, prevent the defence from making submissions about such view which should, in any event, in all cases be communicated to the parties prior to the sentencing hearing so that the Crown and the defence are aware of the terms of the communication that has been made by the trial Court to the sentencing Court under Article 50.
