Jersey Unreported Judgments

[2003]JRC099

ROYAL COURT

(Samedi Division)

18^th June 2003

The Attorney General

-v-

John Robin Troy

Application by the Defendant, under Article 2 (1)(c) of the Costs in Criminal Cases (Jersey) Law 1961 for the payment out of public funds of the costs of the defence in relation to Count 2 of the indictment laid against him, on which count he was acquitted.

[On 23^rd August, 2002, the Defendant pleaded not guilty to 1 count of common assault and 1 count of indecent assault; on 16^th April, 2003, he was found guilty on count 1 and not guilty on count 2.]

J. C. Gollop, Esq., Crown Advocate.

Advocate D. E. Le Cornu for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The applicant, John Robin Troy, applies for costs following his acquittal by the Jury on one count of indecent assault.  The brief history of the matter is that the applicant was charged and committed for trial on two counts.  The first alleging indecent assault upon his partner, to whom I refer as "X", and the second alleging assault upon the same woman.

2.        The applicant was convicted of assault, but acquitted of indecent assault.  He was later fined £1,000 or 1 week's imprisonment in default for that offence of assault.  It is, however, necessary in order to explain the ruling that I am about to give to delve a little into detail.  The applicant and X had enjoyed a passionate, if occasionally tempestuous, relationship over several years.  Shortly before the events giving rise to the criminal charges laid against him the applicant had spent the night with another woman.  There had been an argument but later X appeared to have forgiven him and they had sexual relations once or perhaps twice on the day preceding these events.

3.        The applicant had later that day gone out with male friends for an evening's entertainment.  He returned to X's flat in the early hours of the following morning in an intoxicated state.  X had also in his absence consumed a bottle of wine, and was no doubt under the influence of alcohol.  There followed on X's account a sustained period of cruel and degrading humiliation during which X was compared unfavourably with Thai women, with whom the applicant had slept whilst on holiday, and other women.  He taunted her as to her sexual inadequacy.  X had made a sandwich for the applicant and at one stage X stated that the applicant tried to force it into her mouth.  He abused her verbally and then slapped her on the side of the face causing a small bruise. 

4.        He had then, on her account, ignoring her protestations attempted to have intercourse with her, having forced her legs apart.  She had eventually managed to push him off and in a state of terror after he had threatened to kill her had hit him in the face with an empty wine bottle. 

5.        The applicant's account was very different.  He told the police in interview that he had returned to the flat and that after some pleasantries he had laid down to go to sleep and a short while later had been hit in the face with the bottle.

6.        At trial, he elaborated on this account.  He admitted taunting X about Thai women but he denied pushing the sandwich into her mouth, although he accepted that a sandwich had been brought into the bedroom.  He denied assaulting her by slapping and he denied the indecent assault.  He claimed that X had consented to any sexual activity that had taken place.  He also alleged that X had gone into the bathroom after hitting him with the bottle and had inflicted upon herself the injury giving rise to the bruise.

7.        There was a clear conflict of evidence which the jury was called upon to resolve.  In relation to the count of indecent assault they were, however, also directed in terms that they must be sure that X had indicated to the applicant that she was not consenting to sexual activity.  The jury was told that in the context of a quasi-marital relationship where sexual activity was frequent the applicant had been entitled to presume that X's consent was forthcoming, unless it had been made clear to him that such was not the case.

8.        Counsel for the applicant has submitted that I should not speculate as to the reasons for the jury's acquittal on one count and conviction on another.  It does, however, seem to me to be a reasonable inference from the jury's verdicts that in broad terms they accepted the evidence of X and rejected the evidence of the applicant.

9.        What then is the law to be applied to these facts?  Counsel for the applicant has drawn my attention to Article 2 (1) (c) of the Costs in Criminal Cases (Jersey) Law 1961 the material part of which is in these terms:

"Subject to the provisions of this Article, where any person is prosecuted or tried before a Court to which this Article applies, the Court may (c) if the accused is discharged from the prosecution, or acquitted, order the payment out of public funds of the costs of the defence".

10.      I have, therefore, a discretion to exercise and that discretion must of course be exercised judicially.  The Court has in a number of cases, for example, Attorney General -v- Bouchard (1989) JLR 350, Romeril -v- Attorney General (26^th March, 2001) Jersey Unreported, [2001/71], Cahours -v- Attorney General (17^th December, 2001) Jersey Unreported; [2001/253]; [2002] JLR N.3, and Evans -v- Attorney General (4^th February, 2002) Jersey Unreported [2002/31], held that where a person has been acquitted an order for the payment of his costs out of public funds should normally be made, unless there are positive reasons for making a different order.

11.      This is a case where the applicant has been acquitted on one count but convicted on another.  The jurisdiction to award costs in such a case was considered by the Court in Attorney General -v- Gouveia (2000) JLR 324.  The Court there held that there was a discretion to award costs on a count where the accused had been acquitted even if he had been convicted on another; but Birt, DB, stated:

"Where there is a trial with a number of counts and there are convictions on some and an acquittal on others, an award of costs would be unlikely to be appropriate in the ordinary case where the evidence was found sufficient on some but not on others.  But if, for example, in the case of an assault, the defendant pleaded guilty at an early stage to common assault but the Crown insisted on proceeding on a count of grave and criminal assault which was not ultimately successful (either because of an acquittal following a trial or a late decision to accept the not guilty plea), justice would be likely to demand that the defendant should be awarded his costs, because they would have been incurred only because of the decision of the prosecution to go ahead on that single issue."

12.      This is not such a case.  The applicant did not at any stage offer a plea of guilty to the count of assault.  It is true, as submitted by Counsel for the applicant, that if the count of indecent assault had not been brought the applicant might well have been tried by the Magistrate on the charge of assault, and not committed for trial by this Court, but that is in my judgment immaterial.  The applicant did not offer a plea and the Crown was entitled to proceed to trial on the whole indictment.

13.      Viewing the matter in the round it seems to me that there is a positive reason for not making an order in favour of the applicant in this case.  That positive reason is essentially that set out in the judgment of the Deputy Bailiff in Attorney General -v- Gouveia.  I agree that in an ordinary case where an accused is acquitted on some counts but convicted on others an award of costs is unlikely to be appropriate.  The underlying rationale is that the criminal process was properly engaged and the applicant was ultimately convicted of an offence.  The applicant had at no time accepted any criminal liability nor offered a plea to any offence. 

14.      This is not the same thing as bringing suspicion on oneself and misleading the prosecution into thinking that the case is stronger than it is.  I accept the submission of counsel for the applicant that these matters are to be viewed conjunctively and that there is no reason to think that the applicant misled the police in any material way.  It is true that his story changed but I do not think that this change can have misled the police. 

15.      On the facts of the case it seems to me that the evidence relating to the two charges was closely interlinked.  The applicant was convicted of one charge and had at no time accepted any criminal responsibility.  I bear in mind the cautionary note sounded in Romeril -v- Attorney General that the Court should not penalise an accused person in costs because it -

"feels that the accused's conduct is worthy of criticism in some way".

16.      I am refusing the application in the exercise of my discretion, not to penalise the applicant, but for the reason given above.  The application is accordingly dismissed.

Authorities

A.G. -v- Gouveia (2000) JLR.324.

Romeril -v- A.G. (26^th March, 2001) Jersey Unreported; [2001/71].

Cahours -v- A.G. (17^th December, 2001) Jersey Unreported; [2001/253]; [2002] JLR 3.

Evans -v- A.G. (4^th February, 2002) Jersey Unreported [2002/31].

Attorney General -v- Bouchard (1989) JLR 350.