Appeal against conviction, one count of rape.
Before : |
James McNeill, QC, President; Lord Anderson of Ipswick K.B.E; QC, and Sir William Bailhache. |
Between |
Alex John Hill |
Appellant |
And |
H. M. Attorney General |
Respondent |
Advocate M. P. Boothman for the Appellant .
Crown Advocate S. C. Thomas
judgment
Bailhache JA:
1. The Appellant was committed for trial on an amended indictment containing seven Counts. They were, in short:
Count 1: Assault of a female complainant, ("X"), on 7th October 2018 by slapping her face.
Count 2: Assault of X on a day between 24th January 2019 and 1st April 2019 by biting her shoulder.
Count 3: Penetrative rape of X on 24th January 2019 contrary to Article 5 of the Sexual Offences (Jersey) Law 2018.
Count 4: Grave and criminal assault of X on 24th January 2019.
Count 5: Penetrative rape of X on a day between 23rd January 2019 and 7th June 2019 on an occasion other than that specified in Count 3 contrary to Article 5 of the Sexual Offences (Jersey) Law 2018.
Count 6: Penetrative rape of X on 6th June 2019 contrary to Article 5 of the Sexual Offences (Jersey) Law 2018.
Count 7: Assault of X on a day between 18th November 2018 and 1st April 2019 by biting her hand.
2. The Appellant had pleaded not guilty to all counts and the trial took place between 6th and 10th September 2021 before the Bailiff (Le Cocq) and a jury.
3. At the close of the prosecution case, the defence made an application in the absence of the jury of no case to answer in respect of Count 5 of the Indictment, and the application was dismissed by the Bailiff.
4. Unanimous verdicts of not guilty were delivered by the jury in respect of each of Counts 1, 2, 3, 6 and 7. A unanimous verdict of guilty was delivered in respect of Count 4. A majority verdict of guilty was delivered in respect of Count 5.
5. The Appellant was duly remanded in custody for sentence before the Superior Number and is due for sentence on 9th March 2022.
6. The appeal was first brought only in relation to the conviction on Count 5. There are two specific grounds. The first is that the learned Bailiff erred in law by refusing the Appellant's submission of no case to answer in relation to the prosecution case. The second is that the learned Bailiff erred in law by giving a majority direction to the jury at approximately 4p.m. on the fifth day of the trial (a Friday afternoon) and, in doing so, failed to remind the jury that there was no pressure upon them to reach a verdict that day, an approach which would have avoided the jury being placed under undue pressure. For the Appellant it was submitted that, were this court minded to grant the appeal in relation to the first ground, the conviction should be quashed and the Appellant stand acquitted. However, if the court were minded to allow the appeal only in relation to the second ground, it was accepted that the appropriate order should be for a retrial in relation to Count 5.
7. Upon a review of the papers prior to the hearing of the appeal, the Court invited submissions on the extent to which a defence of consent was available in Jersey to a defendant charged with grave and criminal assault and its relevance to the conviction on Count 4 on the indictment. As a result of this invitation, we received helpful submissions from both counsel and an application by the Appellant to amend his Notice of Appeal to include an appeal against conviction on Count 4. We granted that application. By the amended Notice of Appeal, the Appellant contends that the conviction on Count 4 should be quashed on the grounds that the learned Bailiff failed to direct the jury properly as to the requisite elements of the offence of grave and criminal assault by:
· Failing to explain what was meant by the word "unlawful" in the context of the constitutive elements of the offence;
· Similarly failing to direct the jury as to what was meant by the expression "hostile intent";
· Failing to direct the jury as to the significance of the Complainant's consent to the actions of the Appellant, even if she did not consent to the alleged consequences;
· Failing to direct the jury as to what was required to elevate the offence from an assault to a grave and criminal assault;
· Failing to direct the jury as to the relevance of the Complainant's alleged loss of consciousness.
8. X (the "Complainant") began a brief sexual relationship when the Appellant was in his late teens during which, on what may have been almost every day, they had sexual intercourse, regularly in more than one session. There was a change in the relationship in about November 2018 after a visit by the Appellant to the UK and as a result of the Appellant wishing a more open relationship. By this we understand him to have meant that they would continue to have a sexual relationship but as friends rather than as committed boyfriend and girlfriend and both would be free to take other sexual partners if they so desired. In fact it is clear from the evidence that the Complainant's preference was that the relationship should continue as it had been. Indeed the Complainant and the Appellant continued to have sex on a significant number of occasions between January and June 2019.
9. The Crown case was that throughout the relationship there were occasions when intercourse was accompanied by rough rather than gentle actions or speaking on the part of the Appellant, he being the dominant partner.
10. The Complainant gave evidence in court under protective conditions. Her evidence was that intercourse took place at the Appellant's mother's house while his mother was away. The relationship started in about October 2018.
11. As regards the events on 24th January 2019, in respect of which the jury acquitted the Appellant of the offence of rape but convicted of the offence of grave and criminal assault, the Complainant's evidence was to the following effect.
12. The relationship between her and the Appellant was generally back on track. He had been at the funeral of a friend and contacted the Complainant throughout the day on social media, but at about 9 p.m. he asked her to come and see him, necessitating her travelling across the Island by moped. He was at the pub when she arrived at his house, so she waited outside. When he arrived, he was very drunk, but he dragged her inside and led her up to his bedroom. He got on the bed and suggested they have sex. The Complainant indicated that she had not been expecting that they would have sex but wanted to comfort him following his friend's funeral. She told the jury she refused sex at least ten times. However, he got her on his bed, lay on top of her and was strangling her to the point she passed out for roughly a minute. While he was choking her, she was gasping for breath and her neck was very sore. She could not say "no" as she could not speak. While he was doing this, he was smirking at her. When she came round, the Appellant was on top of her, her jeans were undone and half way down by her knees and his penis inside her. It took her about 30 seconds to realise he was hard and his penis was inside her, and she felt disgusted. When asked whether she said anything to him then, she said she repeatedly told him to stop, and at one point he changed position and entered her from the side. He still had his hand around her throat so she could not stop having sex with him. Then, when he went soft, she said "[Z], you are going soft", jumped off the bed and put her jeans back on. She thought he went to sleep, and she sat on the bed. She wanted him to go to sleep because she still cared for him, but she felt she could not drive because of the state of mind she was in. He then woke up and returned to the pub; she watched television for a while to compose herself and then returned home at about 11 p.m.
13. The evidence for the Appellant was that he agreed he had been drinking heavily. When he got back from the pub, they both went up to his room; they talked for a while, then kissed and things got more serious, progressing to sex. He removed his clothes and she removed hers. He did place his hands around her neck, but not that hard. He did this because they had done it before when having sex, and she had told him she enjoyed this. She did not become unconscious which he knew because her eyes were open, she was able to participate in sex and she was kissing him back, touching him and moaning. She never said no, nor did she try to push him away. The day after, she did tell him he had choked her too hard and made a joke about him going soft, and he thought no more about it, albeit he did apologise to her. She did not mention passing out or losing consciousness. The Complainant had suffered no permanent injury or bodily harm as a result of the choking and the two continued to have sexual intercourse on regular and frequent occasions over the next months.
14. It is clear that the two regularly communicated by Snapchat. On 5th February, i.e. 2 weeks or so after the events of 24th January they had an exchange in which she asserted that she was being strangled and couldn't breathe, nearly passing out. His apology was that he was drunk and did not realise he was too heavy handed. He never meant to choke her as he did. In or about early summer 2019, when such relationship as they had was coming to an end, the two engaged in other lengthy exchanges on an instant messaging service (the "social media messages") during which the Appellant conceded that there had been occasions when he had behaved very badly towards the Complainant and appeared to admit that he had been a rapist, on at least one occasion, although no specific occasion or occasions were mentioned.
15. On the afternoon of the fourth day of the trial the Bailiff began his directions to the jury on issues of law which arose in the case. A transcript of those directions was given to the jurors for them to consider while in the Jury Room. The learned Bailiff made it plain that he would also be summing up the evidence but that if he expressed any view on the facts, the assessment of the evidence was a matter for the jury. That part of his summing up was delivered on the following morning, the fifth day of the trial. Of course we understand that timing issues in a criminal trial sometimes cause a summing up to be delivered over more than one session; but the delivery of the directions as to the law on Thursday afternoon meant that it was all the more important that when the evidence was referred to the following day, some linkage to the legal directions should be provided so that the jury could see the legal directions in the context of the facts which they had to consider. It is unfortunate that this does not seem to have occurred in this case.
16. Be that as it may, the learned Bailiff's directions on the law relating to Count 4 were these:
"Counts 1, 2 and 7 are counts of assault, Count 4 is one of grave and criminal assault, and Counts 3, 5 and 6 are counts of rape. I will tell you about the legal requirements for each of these counts to be proven, starting with the offences of assault and grave and criminal assault.
An assault is committed if a person unlawfully applies force to another person with hostile intent, or makes that person fear that they are to be subject of such force. In Jersey, there are two kinds of assault, common assault and grave and criminal assault, and the accused is charged with both of these. The difference between the two kinds of assault is merely a question of degree.
If the threatened or actual assault is a serious one, in this case the choking of Ms X until she lost consciousness, as alleged in Count 4 on the indictment, then if you are satisfied that the Defendant intended to unlawfully apply such force to Ms X, and he had a hostile intent at the time, then that could amount to a grave and criminal assault.
If you are satisfied the Defendant slapped Ms X in the face or, bit her on the shoulder or on the hand, as alleged in Counts 1, 2 and 7 on the indictment, then if the Defendant intended to unlawfully apply such force to her, and that he had a hostile intent at the time, that could, in each case, amount to an assault.
What do I mean by a hostile intent? A person may intend something by deliberately wishing it to occur, or by being reckless as to whether or not it occurred. In other words, he does not care whether he is carrying out the assault or not. On one such occasion, for example, the grave and criminal assault in Count 4, the evidence is that the Defendant had consumed large amounts of alcohol. You must assess whether or not he intended to carry out the assault against Ms X, against the test of what a sober man would have intended or understood by his action, and not what a man who was intoxicated would have intended or understood."
17. We start with the concept of grave and criminal assault in the law of Jersey. In AG v Vaughan (unreported) the defendant was tried on a charge of grave and criminal assault in November 1974. Ereaut, Deputy Bailiff, as he then was, set out the offence of grave and criminal assault in this way:
"In Jersey Law assaults can be of two kinds. They can either be a common assault, which is the less serious of the two kinds of assault, or they can be a grave and criminal assault, which is, as its name implies, the more serious type of assault, and the only difference between them is one of degree. For example, to slap a man in the face, perhaps even to punch him on the nose, and to do no more than that, could be a common assault; but to kick a man repeatedly about the face or body with a booted foot or to use a weapon of any kind could be undoubtedly a grave and criminal assault."
18. The learned Judge went on:
"Now, in Jersey Law, an assault is a touching or laying hold by one person on another in angry, revengeful, rude, insolent or hostile manner, and it includes an attempt to do so, provided that the person who is threatened is led to anticipate an attack. In England, an attempt to do those things is called "an assault", and the actual doing of those things is called a "battery"; but here we make no such distinction; we use the same name both for an attempt and for the actual doing of the thing; they are both equally called assaults. "
19. As is set out by Advocate Cyril Whelan in his Article in the Jersey Law Review of October 2006, entitled "Grave and Criminal Assault - the landscape past and present" ("Whelan"), the extent of the injury may play a part in the identification of which of the offences (grave and criminal, or common) fits better the conduct of a defendant in a particular case. However, it is not the only test. As he says, an attack with a weapon fortuitously causing slight, or even no, injury can still constitute a grave and criminal assault. Whelan suggests that the rational basis for this is that the Court or jury can consider the degree of injury inflicted or the injury to which the victim is put at risk by the assailant. This may not be a complete answer to the question but no doubt it explains how, in the case of AG v Bardwell 1996 JLR N-16, the defendant was convicted by a jury of grave and criminal assault for conduct which involved following his victim late at night for a considerable period of time before attacking her outside her home. He used no weapon and her physical injuries were slight, although the trauma caused by the stalking through the dark streets of St. Helier was considerable and long lasting. The jury in that case considered her distress to be capable of converting an assault into a grave and criminal assault.
20. The definition of assault by Ereaut DB in Vaughan was considered by this Court in de la Haye v AG [2010] JLR 218. That was a case where the appellant drove her car when very intoxicated, hitting and badly injuring three pedestrians. She had pleaded guilty to various road traffic offences, but not guilty to charges of grave and criminal assault on the grounds that the necessary mens rea to establish grave and criminal assault was intent, whereas the prosecution allegation was merely one of recklessness; and on the grounds that it was an abusive process to charge grave and criminal assault in a road traffic case. Both those grounds of appeal failed, but we are not concerned with the second of them. In the Royal Court the ruling had been made that recklessness was a sufficient mens rea for the offence of grave and criminal assault. This Court considered, at paragraph 64, that there was "no reason in logic or in law why a person who recklessly applies physical force to another should be outside the criminal law of assault. Recklessness is not to be equated with negligence. Recklessness is not negligence writ large. The conclusion that recklessness, which has a subjective element, forms part of the law in Jersey in assault cases has both logic and moral force.
21. The Court continued:
65. Clearly, different considerations might arise if the relevant rule of English common law were unduly technical or anomalous or if it arose from considerations rooted in English experience which did not have the same relevance in Jersey. In fact, the treatment of recklessness as morally and legally equivalent to intention is a general feature of the English law of tort and of aspects of the English law of trusts, as well as of English criminal law. Provided that it is borne in mind that recklessness is a subjective state of mind and not an objective standard of conduct, this is a rational response to a problem which is by no means peculiar to the law of criminal assault. To discard recklessness as an element of the offence of grave and criminal assault or apprehended assault would be to introduce into this area of Jersey criminal law distinctions which are practically difficult to draw, arbitrary in their effects, and anomalous in the broader scheme of the law.
......
66. We are of the view that in Jersey Law the element of mens rea in the offences of assault and grave and criminal assault is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another."
22. Delivering the judgment of the Court, and referring to the summing up to the jury by Ereaut, DB in Vaughan, Sumption JA referred to the 36th Edition of Archbold which had formed the basis for that summing up and in particular to the judgment of Bramwell J in Coward v Baddeley (4 H&N at 480-481; 157 ER at 928) in which he made reference to Hawkins 1 Pleas of the Crown at 263 where it is said:
"Any injury whatever, albeit never so small, being actually done to the person of a person in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him out the way, are batteries in the eye of the law."
23. The view expressed by this Court in de la Haye was that while it was unsurprising that this language might have formed the basis for the summing up in Vaughan, it would be desirable if the adjectives or epithets used by a judge in a summing up to the judges of fact were of modern usage; but there is implicit acceptance that the definition of assault or grave and criminal assault in Vaughan was unobjectionable albeit not an all-encompassing definition.
24. We add in passing that there is no reference in de la Haye to the question of unlawfulness or consent because neither of those concepts arose on the facts of that case. By contrast, we are required to consider them here as they arose on the evidence before the Royal Court.
25. Before we turn to the issues which arise directly out of the present case, we now review the treatment of these issues under English law.
26. As has been said previously, English law distinguishes between different types of assault - having regard in particular, among other things, to the degree of injury which has been sustained by the victim. Accordingly, Section 18 of the Offences Against the Person Act 1861 ("the 1861 Act") deals with the unlawful and malicious wounding or inflicting of grievous bodily harm to any person with intent. Section 20 of the 1861 Act deals with the unlawful and malicious wounding or inflicting of grievous bodily harm on another person with or without weapons but without the need to show specific intent. Section 47 creates the offence of an assault occasioning actual bodily harm. Each carries a different penalty.
27. These provisions make it plain that there is both an actus reus and a mens rea in relation to each of these offences. The actus reus includes expressly the requirement that what is done in relation to Section 18 and Section 20 offences must be done "unlawfully" if the conduct is to fall within the ambit of those sections.
28. The term "assault", sometimes referred to as a "common assault", is defined by Archbold at paragraph 19 - 221/2 [2022 Edition] as:
"Any act .... by which a person intentionally - or recklessly - causes another to apprehend immediate unlawful violence ....... When, as is usually the case, the word "assault" is used an abbreviation of assault and battery, it simply means an act by which a person intentionally or recklessly applies unlawful force to the complainant ... Provided those ingredients are proved, the offence will have been committed however slight the force. "
29. Archbold describes the mens rea in this way at paragraph 19-227:
"...The element of assault frequently and usefully described as "hostility" is a means of conveying to a jury that some non-hostile contact is an ordinary incident of life to which we all impliedly consent ."
30. The question of recklessness in assault and battery is tackled at paragraph 19 - 223, where the test of recklessness is taken from numerous authorities including R v Cunningham [1957] 2 QB 396 and expressed by the learned editors as follows:"..... recklessness in common assault involves foresight of the possibility that the complainant would apprehend immediate and unlawful violence, and taking that risk; in battery, it involves foresight of the possibility that the complainant will be subjected to unlawful force, however slight, and taking that risk."
31. It is clear that the necessary criminal intent for a section 47 offence is the same as it is for a common assault. The only difference is that for a section 47 offence to be established, the assault must have occasioned actual bodily harm. That expression has its ordinary meaning. The definition in R v Donovan [1934] 2 KB 498 was cited with approval by Lords Templeman and Jauncey in R v Brown [1994] 1 AC 212, namely that bodily harm "includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent, but must be more than merely transient or trifling. It includes psychiatric injury but does not include emotional fear, distress or panic." In R(T) v DPP [2003] Crim. L.R. 622, it was considered that it "is axiomatic that bodily harm was actual" where there is injurious impairment to the victim's sensory functions. This, we would observe for present purposes would flow from a momentary lack of consciousness.
32. If we were sitting in England, then putting all that together for the purposes of the contentions of the Crown and the Appellant in this case, it would seem that if the Complainant's evidence was to be accepted that she had lost consciousness, she would therefore have lost her sensory functions and thus sustained actual bodily harm. In that event, the results of the conduct would take one into a section 47 offence if the other elements are proved. On the other hand, if the Appellant was correct, and no loss of consciousness ensued, then the consequences of what was done would, if other elements were established, fall into the category of a common assault, there being no evidence of anything more than a transient or trifling injury being sustained, however dangerous the results could have been.
33. We note in passing that what we have considered might have taken place in a prosecution in England and Wales would now be affected by section 75A of the Serious Crime Act 2015, inserted by section 70 of the Domestic Abuse Act 2021, which creates an offence of intentional strangulation or suffocation with a maximum penalty of five years (like the section 47 offence) but without it being necessary to prove actual bodily harm. Consent is a defence, but not when the complainant suffered serious harm (defined as grievous bodily harm, wounding and actual bodily harm) and when the defendant either intended serious harm or was reckless as to whether serious harm would be suffered. Section 71 of the Domestic Abuse Act further provides that consent to the infliction of serious harm for the purposes of obtaining sexual gratification is not a defence. By contrast, the position which we have just set out indicates that consent would be capable, entirely depending on the circumstances, of providing a defence to a charge of common assault.
34. In Brown [supra] the House of Lords was faced with defendants who had consensually engaged in extreme sadomasochistic acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. They pleaded not guilty to charges of various offences under sections 20 and 47 of the 1861 Act. The issue before the House of Lords was whether the willing and enthusiastic consent of the victim to the acts perpetrated on him prevented the prosecution from proving an essential element of the offence, whether charged under section 20 or 47. It is noteworthy that at least four of their Lordships accepted that it was not possible to consent to the inflicting of grievous bodily harm, and that therefore the consent of the victim could not provide a defence to a charge under section 20 of the 1861 Act. As to whether it was a defence to a charge under section 47 of the 1861 Act, it was considered by a majority that the victim's consent afforded no such defence. The minority (Lords Slynn and Mustill) took the view that the case was more about the criminal law of private sexual relations rather than the criminal law of violence and accordingly it was a matter for Parliament rather than the Courts to determine that the conduct in question was not conduct to which the victim's consent was material. Lord Slynn considered that even though the injuries were sufficiently serious wounds for the purposes of falling within section 20 of the 1861 Act - and necessarily therefore if they only fell within section 47 - the prosecution must nonetheless prove the act was done without the consent of the persons suffering the injury. Lord Mustill concentrated on section 47 offences and concluded that consent would be a defence to a charge brought under that section. It is unclear from his judgment whether that would extend to a charge brought under section 20 where grievous bodily harm had been sustained.
35. The majority view was that the consent of the victim was no defence to a charge under either section 20 or section 47 of the 1861 Act. The reasoning underlying that conclusion was slightly differently expressed. Lord Templeman took the view that there was in principle a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. Sadomasochism fell within the latter category. Such violence was injurious to the participants and unpredictably dangerous, and he would not apply a defence of consent for encounters which "breed and glorify cruelty and result in offences under sections 27 and 20 of the Act of 1861". He concluded that "[s]ociety is bound to protect itself against a cult of violence". Lord Jauncey in considering the public interest had regard not just to actual but to potential harm which he considered to include the risk of infection including by HIV Aids, the risk of pain and injury being inflicted beyond the level to which the receiver had consented and "the possibility of proselytization of young men". Lord Lowry noted that "everyone agrees that consent remains a complete defence to a charge of common assault and nearly everyone agrees that consent of the victim is not a defence to a charge of inflicting really serious personal injury (or "grievous bodily harm")". Lord Lowry's conclusion was that sadomasochistic homosexual activity could not be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society and therefore such conduct fell within the general rule that one could not consent to the inflicting of actual bodily harm.
36. Before leaving the case of Brown, it is also noteworthy that Lord Jauncey, with whom Lord Lowry agreed, focussed at one point in his speech upon the question of a hostile intent. At page 244 he said this:
"It was urged upon your Lordships that hostility on the part of the inflictor was an essential ingredient of assault and that this ingredient was necessarily lacking when injury was inflicted with the consent of the receiver. It followed that none of the activities in question constituted assault. The answer to this submission is to be found in the judgment of the Court of Appeal in Wilson v Pringle [1986] 2 All ER 440 at 447, [1987] QB 237 at 253, where it was said, that hostility could not be equated with ill will or malevolence. The judgment went on to state [1986] 2 All ER 440 at 448, [1987] QB 237 at 253:
"Take the example of the police officer in Collins v Wilcock [1984] 3 All ER 374, [1984] 1 WLR 1172. She touched the woman deliberately, but without an intention to do more than restrain her temporarily. Nevertheless she was acting unlawfully and in that way was acting with hostility."
If the appellants' activities in relation to the receivers were unlawful, they were also hostile and a necessary ingredient of assault was present."
37. For policy reasons therefore, the majority in Brown decided that the right place to draw the line for the purposes of the question as to whether consent was material was that it would provide a defence to common assault but not to an offence under section 47 where the assault occasioned actual bodily harm.
38. Brown was considered by the Court of Appeal in R v Wilson [1996] 2 Cr. App. R 241. In that case, the appellant with the consent of his wife and indeed at her request, had used a hot knife to brand his initials on each of his wife's buttocks. The appellant appealed on the basis that Brown was not authority for the proposition that consent was no defence to a charge under section 47 of the 1861 Act in the circumstances where actual bodily harm was deliberately inflicted. The Court of Appeal considered that what the appellant had done did not involve an offence under section 47 even though actual bodily harm had been deliberately inflicted. It reached the view that it was not in the public interest that consensual activity between husband and wife in the privacy of the matrimonial home should be made the subject of criminal prosecution and in that particular case there was no aggressive intent and no evidence of any significant harm having been done to the wife. Her consent therefore provided a defence. Russell LJ described the approach to Brown in this way (at 243):
"We are abundantly satisfied that there is no factual comparison to be made between the instant case and the facts of either Donovan or Brown; Mrs Wilson not only consented to that which the appellant did, she instigated it. There is no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant's desire was to assist her in what she regard as the acquisition of a desirable personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery.
In our judgment, Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the 1861 Act, in all the circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the questions certified for their Lordships in Brown related only to a sadomasochistic encounter. Their Lordships recognised, in the course of their speeches, that it was necessary there must be exceptions to what is more than a general proposition.
...... For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was free to engage in it as anyone else.
We do not think we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing. There was simply no evidence to assist the Court on this aspect of the matter."
39. The case seems to present authority for the proposition that the existence of actual bodily harm is not necessarily sufficient to remove the victim's consent as a defence; but that it will depend on the injury actually or potentially sustained.
40. Brown and Wilson were considered in R v Emmett 1999 WL 477810, a decision of the Court of Appeal. The facts in that case were different again. On the first count, the evidence was that in the course of sexual activity, it was agreed that the appellant would cover his partner's head with a plastic bag, tie it at the neck with a ligature and tighten it to the point of endurance on the part of his partner. She was also tied up. While she was enveloped in the plastic bag in this way, the defendant engaged in oral sex with her and ultimately became aware she was in some sort of distress, was unable to speak or make intelligible noises, and it was apparent she was in trouble because of the loss of oxygen. He rapidly removed the bag from her head. It may be that she actually lost consciousness during this episode and certainly the following day her eyes became progressively and increasingly blood shot. There were sub-conjunctival haemorrhages in both eyes and some petechial bruising around her neck. The first symptom was caused by the restriction of oxygen to the brain and second by the restriction on the return blood flow in her neck. About a week later her eyes returned to normal but having regard to the medical evidence, the Court considered it plain that brain damage of increasing severity and ultimately death might have resulted if the restrictions continued for too long.
41. The second offence was committed because the appellant had poured lighter fuel over his partner's breasts and set light to it. As a result, she suffered a burn which became infected and, at her partner's insistence, she consulted the doctor again. Although there was a suggestion it might have been a full thickness third degree burn which might require a skin graft, it ultimately turned out that the burn healed over without scarring. The judgment describes how the appellant and his partner had an energetic and very physical sexual relationship, in which "the suggestions for some of the more outré forms of sexual activity came normally from him, but were always embarked upon and only after discussion and with her complete consent and always desisted from if she objected."
42. On the facts of that case, the Court of Appeal determined that whether the line was drawn at the point at which common assault became an assault occasioning actual bodily harm, or at some higher level where the evidence, looked at objectively, revealed a realistic risk of more than transient or trivial injury, the activities in that case went well beyond that line and consent was therefore immaterial.
43. Brown was also considered in R v BM [2018] 2 Cr App R 1, [2018] EWCA Crim 560. A tattooist was charged under s 18 of the 1861 Act with the removal of a customer's ear and nipples and splitting of the tongue. The Court of Appeal considered that there was no easily articulated principle which led to the exceptions set out in Brown (which represented a balance struck by the judges to reflect a series of different interests) and fresh exceptions should not be recognised on a case by case basis as society came up with novel genres of abuse. As is put in Archbold, "the personal autonomy of the appellant's customers did not justify removing body modifications from the law of assault".
44. As we read them, the decisions in the English cases reflect various policy considerations. These appear to be the potential risks from the conduct in question; existing established sports (boxing, football etc.) and other exceptions; the extent to which the criminal law ought to be concerned with consensual activity and in particular consensual sexual activity in private; and indeed the extent to which these are matters for the courts rather than for the legislature. More specifically, it may well be that the introduction of the provisions of the Domestic Abuse Act 2021, to which we have referred to at [33] above, reflects not just the potential risk of serious injury or death, but the reported use of choking or strangulation, including during sexual activity, as an instrument of coercive control by the physically stronger party in an abusive relationship.
45. Turning to Jersey, although it has long been the position that a person under the age of 16 cannot consent to an indecent assault committed upon him or her, it remains the case that, unless the specific provisions of the Sexual Offences (Jersey) Law 2018 apply, the consent of a person over the age of 16 to sexual activity is a defence to any charge being brought; or as is sometimes put as the other side of the coin, the absence of consent of such a person is an element of the offence which the prosecution must prove to the criminal standard. That this is so demonstrates that in Jersey, as in England, consent is a defence to a charge of common assault. Indeed the Royal Court proceeded on that basis in the case of Querée v AG [2018] JRC 014, albeit the main focus of that case was the question as to whether the conduct in question could amount to indecent assault when it took place during consensual sexual intercourse. It is to be noted that in that case the Royal Court did not tackle directly the question as to whether consent would provide a defence to a charge of grave and criminal assault because, on the facts of that case, neither the injuries sustained by the victim nor the surrounding circumstances were such that a grave and criminal assault would have been an appropriate charge. We have noted that at paragraphs 38 - 40 of the Royal Court's judgment in that case, reference was made to Brown and to the 1861 Act, and that at paragraph 40 the Court concluded:
"It is not an easy proposition to establish that simply because a charge has not been brought before in particular circumstances, it is not capable of being brought and found proven; but we acknowledge nonetheless that given the variety of sexual preferences which exist in human kind, the Courts are liable to be cautious in taking the criminal law into consensual activity between adults in the bedroom. There are times when that is clearly appropriate - for example when, even during intercourse, the woman's consent is clearly withdrawn. Caution, therefore, does not mean that the criminal law does not go there; but it does mean that a clinical examination of all the circumstances is required as well as a careful evaluation of the possibilities - that a defendant's explanation may be correct; or that consent was given or that the extent of the injury was such that consent is no defence; or that the requisite intention has not been established. If a charge of common assault had been brought - the bruising in this case does not seem to have been such that a charge of grave and criminal assault could have been justified - there could have been a different inquiry below, including no doubt into the question of recklessness."
46. We approach our task upon the basis that in the law of Jersey, as in the law of England, consent is a defence to what in this jurisdiction is characterised as a common assault; but that it is an open question as to whether consent would provide a defence to a charge under Jersey law of grave and criminal assault. As regards the latter issue, we note from the English authorities to which we have referred that there may be scope for the proposition that the existence or apprehension of actual bodily harm is not of itself sufficient to remove the victim's consent as a defence; but that determination of the issue might depend on the injury actually or potentially sustained. From a Jersey perspective, the offence, whatever the degree of seriousness, does not fall within a statutory scheme but is simply an assault with the language of "grave and criminal" introducing a difference in the seriousness but not in the substance of the offence, which remains the application or threat of force against another. It might therefore be thought to be open to argument that, if consent provided a defence to the lesser category of Jersey offence, it should in all cases provide a defence to the more serious, leaving it to the jury to decide in any case the likelihood of a victim genuinely consenting to serious injury. As will be apparent from [65] below, we would reject this latter argument.
47. Advocate Boothman for the Appellant accepted that there had to be a limit on the circumstances in which consent could be given to the inflicting of serious injury. He submitted, however, that one could not translate the rationale in Brown to the Jersey offence of grave and criminal assault. In Jersey, there is more flexibility with the offence of assault than there is in England and Wales. He gave the example of arm wrestling between two willing participants where the weaker of the two had his arm broken in the course of that contest. On the Crown's analysis, the defence of consent would not be available. Yet was that fair? In relation to sexual practice, he gave the example of whipping as an ancillary to sexual activity. The use of the whip was a weapon which was capable of converting the offence of assault into a grave and criminal assault and indeed the use of the whip could cause serious injury even if on some occasions it did not. Yet should there not be a defence if there was consent to that practice, when certainly that defence would be available if the charge, properly brought, had been an indecent or common assault?
48. On the facts of the present case, Advocate Boothman accepted that the Appellant had admitted to placing a hand or hands around the throat of the Complainant. The Appellant's case was that he did not choke the Complainant to the point of her losing consciousness, even if he had been more heavy-handed than he might otherwise have been. Her consent to that practice both before and after January 24th meant that there was, on the Appellant's version of events, potentially an issue of consent which should have been considered by the jury. However, not only did Count 4 set out no particulars of the offence other than the date on which, the person by whom and the person on whom it was committed, but the learned Bailiff gave no directions to the jury as to how they should consider the issue of consent at all. Accordingly, Advocate Boothman submitted that there was a risk that the jury might have considered the Appellant guilty on count 4 simply on the basis of his admitted actions. Indeed, in the learned Bailiff's summing up the jury had not been given assistance as to what the defence case was. In the submission of Advocate Boothman, the defence of consent would be available to a Defendant even if there had been a transient loss of consciousness with no permanent damage, which was the Complainant's evidence here. For all these reasons, the defence of consent did arise in relation to this case and should have been dealt with by the Bailiff.
49. For the Crown, Advocate Thomas emphasised that he was not seeking to import the 1861 Act in whole or in part, but there was a principled basis for contending that the defence of consent was not available on a charge of grave and criminal assault, either in principle or in the circumstances before the Court here. Any loss of consciousness was purely a matter of chance. Whether the Appellant's evidence that he had not choked the Complainant to the point of unconsciousness was accepted or not, the risk of serious harm being caused by the conduct of the Appellant was such that consent should not provide a defence.
50. When pressed on the elements of the offence of grave and criminal assault in the context of choking during sexual intercourse, Advocate Thomas submitted that the actus reus was complete with one or both hands applying pressure to the throat of the partner, thereby restricting the supply of oxygen to the brain, whether or not coupled with a loss of consciousness. As to the mens rea of the offence, he submitted that the prosecution would have to prove the intention to place one or both hands on the throat, coupled with indifference or recklessness as to whether serious injury (unconsciousness or death) might result. As a matter of policy, consent should provide no defence to potential asphyxiation.
51. With reference to the instant case, Advocate Thomas indicated that no option of common assault had been put to the jury because the only issue was whether the Complainant had passed out. In other words, if the Appellant had choked the Complainant to the point that she did pass out, it would clearly be a grave and criminal assault; and for the reasons given the question of any consent to the act of hands applying pressure to the throat would be immaterial.
52. Having regard to the views and contentions we have just discussed, the issue of consent is of manifest importance. In our judgment, the directions given by the learned Bailiff did not tackle sufficiently the treatment of such consent as the Complainant may have given to the actions of the Appellant. The learned Bailiff did set out the evidence of each of the Complainant and the Appellant very fully on the Friday morning, but there was no assistance given to the jury as to whether, if the Appellant's evidence were accepted, that could amount to a defence to a charge of grave and criminal assault.
53. As has been seen, in England and Wales the distinctions which exist between the different types of assault can in themselves lead to a straightforward division into cases where consent is or is not a defence. The Courts can use the nature of the offence, differentiated by the extent of the injury caused, so as to distinguish between those assaults where consent is a defence and those where it is not. Wilson shows that there is some scope for the courts to approach consensual sexual activity in private as a separate matter where there is what may be characterised as "good reason" to permit consent as one of the exceptional defences in the circumstances of the case.
54. In Jersey, however the degree of harm and/or injury caused is only one factor which a Court or jury may take into account when considering whether an assault might be grave and criminal or common - whether it fell into the more serious or less serious category. A jury is entitled to have regard to all the circumstances of the offence in that connection. Thus, although the injuries sustained might have been relatively minimal, the surrounding circumstances (the use of a weapon, the fact that the complainant was on the ground at the time, the nature of the injuries inflicted, the fact that there was more than one assailant and so on) could be material justification for a conviction for the more serious offence. In our judgment this makes it difficult to take the injury sustained as the governing factor in deciding whether consent is or is not relevant. Whelan, cited above, summarises the elements of a grave and criminal assault at paragraph 23 thus:
"a grave and criminal assault is an unlawful application of force (or conduct which causes the victim to apprehend its imminent application on him) or the violation of the body of another in either case causing or risking substantial injury to the victim.".
55. In our judgment, the appropriate definition of the actus reus of a grave and criminal assault is one where there is an unlawful application or threat of force by the Defendant on the victim which causes or risks substantial injury to the victim or otherwise is committed in circumstances which the judges of fact consider to be more serious than would be reflected in a conclusion of common assault. It does not arise in the present case but causing or risking psychological injury would be as much part of the offence as causing or risking bodily injury. The mens rea includes the intention to apply unlawful force, or recklessness as to whether it is so applied (see paragraph 66 of the Judgment of this Court in de la Haye).
56. Consent, as we have said, is a defence to common assault. The jury decides whether the victim consented or might have consented in any case where that is in issue; but it is important that the jury should also be given directions as to the circumstances in which any consent is relevant to the matter which they have to consider. The jury also decides whether the assault, if it decides that there is one, is serious enough to be treated as grave and criminal - see paragraph [54] above. Directions should make clear the considerable ambit of discretion available to the jury because it is their view of seriousness which governs the category of any criminal assault. That being so, it seems unavoidable that a jury in any case at the margin between grave and criminal or common assault will be obliged to consider the question of consent because that is undoubtedly relevant to the lesser offence. In other words, in circumstances where the proper characterisation could be determined at either level of seriousness, it cannot be avoided that the whole matrix of fact includes the alleged consent.
57. Whether the application of force is lawful or unlawful could be a question of both law and fact and the judge in any criminal trial has to address the question whether any direction to the jury or Jurats on that issue is necessary. We give this example. A stranger sees a child on the sea wall where there is a drop of 15 feet to a stony beach below. He moves to grab the child (the application of force to the person of another) with the intention of doing so and ensuring the child's safety. Unfortunately, the child trips on the wall in the process and drops to the ground below, sustaining serious injury. The injury is clearly accidental, but the application of force to the person of another by the defendant is also intentional. In such circumstances the application of force may not have been unlawful. The conclusion will probably depend upon whether lack of evidence of a hostile intent indicates there to have been a legitimate reason for the act.
58. The legitimacy of the reason for the application of force on the victim means that its lawfulness must be considered in every case where there might be doubt as to that issue. In most cases of assault or grave and criminal assault the question of lawfulness will not arise - a punch in a street brawl is unlawful unless thrown in self-defence or with any of the other defences which might be available to a defendant in the ordinary course of events.
59. Here, the Crown invited us to say that the conduct has to be treated as the unlawful application of force because the risk of injury or the outcome actually resulting was serious and substantial. But we observe that, in the whole circumstances here there was, and could have been, no medical evidence as to whether there was a risk of substantial injury in the general type of conduct engaged in, nor was there any medical evidence that, if the Complainant did not lose consciousness, there was nonetheless the risk of injury of a particular nature being sustained by her if this conduct continued over a sustained period of time albeit never resulting in a loss of consciousness. In all of these circumstances in our judgment some direction to the jury would be required as to what could constitute the proof of unlawfulness.
60. Returning to the directions given to the jury by the learned Bailiff, a direction such as that given (see [16] above) that the jury consider whether there was "a hostile intent at the time" on the part of a defendant is no doubt a proper direction in cases where the hostility of the intent can be assessed by having regard to the circumstances in which the act took place. In circumstances such as the present however, where, on the Appellant's case there was no hostility at all but the act took place in circumstances of consensual sexual activity which the Complainant is said to have enjoyed, the expression may be of less utility.
61. A matter of importance to us in the present case, and which we put to Counsel, is as to the proper implications arising from the fact that the jury, by their unanimous decision acquitting the Appellant of the charge of rape having taken place on the same occasion as the alleged grave and criminal assault, must have found that the evidence did not establish to the criminal standard that the sexual intercourse between the Appellant and the Complainant took place on 24th January without her consent and thus was unlawful. In our judgment, such a verdict upon such a basis was manifestly open to the jury. The necessary implication, however, is that the jury found that consent had not been withdrawn; and for that to be so, must have been unable to find as a fact that the Complainant had lost consciousness.
62. Advocate Thomas submitted that the jury, by their verdict on the count of grave and criminal assault, must have considered that the Complainant lost consciousness. He asserted that there was corroboration for this outcome in the Snapchat messages passing between the Complainant and the Appellant in February some two or three weeks after the event. He also relied on the possibility of the jury relying on a brief period between the Complainant losing consciousness and the Appellant realizing that that is what had happened. In our judgment, the latter submission is fanciful and the difficulty with the former submission is that it is impossible to reconcile with the acquittal on the rape charge. If the members of the jury were sure that the Complainant had lost consciousness and that when she came to she found that the Appellant had his penis inside her, they must equally have been sure that he had committed the offence of rape because if she were unconscious she could not be in the position of giving consent to that penetration or continued penetration. That inherent finding of the factual situation underlying the charge of rape ought, ineluctably, to have been carried over into consideration of the charge of grave and criminal assault as we have set out above. The situation here is not one where there is a possible question as to whether there was corroboration for the one offence but not the other, albeit being carried out at the same time. It follows, in our judgment, that these verdicts are such that they call for interference by an appellate court because no reasonable jury, properly applying their minds to the facts, could have reached the respective conclusions which they did.
63. For the principle involved in such interference, see R v Durante (1972) 56 Cr. App. R 708 (CA) approved in R v Fanning [2016] EWCA Crim 550, [2016] 2 Cr App R 19, at [15]. This is one of those occasions on which the finding of acquittal in relation to Count 3 demonstrates conclusively that the jury could not have been sure beyond reasonable doubt that the Complainant lost consciousness, that being, in the circumstances, the critical issue regarding consent. Although the Crown put its case on Counts 3 and 4 together both in the opening and in the summing up to the jury, it was right for the learned Bailiff to direct that Counts 3 and 4 had to be considered separately because it would certainly have been possible to convict on Count 3 but not on Count 4. If the Complainant did not give consent to the admitted sex, that would amount to rape; and the absence of consent could, but would not necessarily, ground the evidential basis for the allegation of assault in Count 4. However, it was not reasonable to convict on Count 4 but not on Count 3 because if the Complainant had been choked to the point of losing consciousness, then she could not have consented to the sex. It follows that the Appellant's evidence that the Complainant did not lose consciousness and had no significant injuries required that a different direction as to the law of grave and criminal assault should have been given by the learned Bailiff. This would have enabled the jury to consider not only whether the Complainant's consent to partial choking during intercourse had been established, and the impact on the rape charge; but also, if they were not so persuaded, whether this also afforded a defence to the charge of grave and criminal assault. No such direction was given, and it is impossible in those circumstances to be satisfied that the jury can have considered properly the issues raised.
64. The appeal against the conviction on Count 4 has thus been allowed because the defence of consent could on one interpretation of the evidence have been available to the Appellant and the learned Bailiff's summing up did not assist the jury with directions that this defence be considered. Accordingly the conviction is set aside.
65. It may be of assistance to consideration of future prosecutions that we indicate that
(1) Consent is always available as a defence to common assault.
(2) If the jury determines that an assault reached the "grave and criminal" threshold, other factors may be relevant to the question as to whether the defence of consent is available. We share the difficulties expressed by Lord Mustill in Brown of arriving at any "general theory of violence and consent" but make the following observations.
(3) There are some types of activity (e.g. surgery, tattooing and contact sports) potentially giving rise to grave and criminal assaults but to which the issue of consent is potentially relevant and may (depending on the individual facts and circumstances) be a defence.
(4) In our judgment, however, there will be certain types of activity where it would be contrary to public policy for a defence of consent to be available to the jury. That will be the case, in particular but not exclusively, when the nature of the injury or attack, inflicted or threatened, is particularly egregious or grievous. A trial judge will make an assessment as to whether such a direction should be given to a jury on the facts of the particular case, and if necessary that will be tested on appeal to this court.
(5) In between such areas, a particularly anxious area may be that of sexual activity, as to which the circumstances before us in the present case allow us to offer the following guidance:
A) The possibility that consent may properly be raised as a defence to grave and criminal assault, during sexual activity not amounting to rape, will emerge where the nature of the injury sustained or threatened (or the lack of substantial injury) make consent a possible defence. The availability of the defence of consent will depend upon the nature of the particular activity that has given rise to the complaint and upon alleged consent having been given in circumstances showing that it was free and fully informed.
B) We do not consider, however, that a defence of consent could in any circumstances be left to the jury in circumstances where an act of choking during sexual activity resulted in a loss of consciousness, with its obvious and inherent risks of long term incapacity if not also death. Manifestly those risks make it improper, as a matter of policy, to countenance that a right-minded individual - of whatever level of aspiration for sexual gratification - would give consent. Equally, as it seems to us, it might be said that there was an irrebuttable presumption that such alleged consent could not have arisen from a mental engagement both free and fully informed.
66. Count 5 was a specimen count, referring to a single occasion during a period of four and a half months in early 2019. In essence, although the charge excluded only the January rape charge, the allegation as presented was that during consensual intercourse, she had, on a number of occasions other than those covered by Counts 3 and 6, asked the Appellant to stop and withdraw from her, but that he had not done so. In the judgment of the learned Bailiff, given in respect of the half-time submission, the evidence of the Complainant on this particular matter was ambiguous and possibly tenuous, in marked contrast to her ABE (sc. Achieving Best Evidence) Interview. In his judgment, had that been the only evidence before the Court, it might have been that the defence application would have been successful. However, the learned Bailiff was persuaded by the Crown submissions that the evidence from the messaging communications, a number of which could be taken as admissions of refusal to desist when requested to do so on multiple occasions, meant that the whole matter should go to the jury.
67. In the event, notwithstanding the Complainant's evidence in respect of Counts 3 and 6, the Appellant was unanimously acquitted of those counts. In essence, such specific evidence as the Complainant gave had related to Counts 3 and 6. In his submission of no case to answer on Count 5, it was contended by Advocate Boothman that the remaining evidence given by her, which might have formed the basis for the allegations in relation to Count 5, was either too unspecific or did not deal with separate occasions when the Appellant had insisted on continuing with intercourse after the Complainant had asked the Appellant to desist but rather were the same occasions charged under Counts 3 and 6.
68. Following the Complainant's evidence in chief, and clearly because of the paucity of evidence in relation to Count 5, the Crown had made an application to adduce sections of her ABE interview and notes produced to the Police. The Crown application was refused. Thus, the ABE interview was not in evidence before the jury and, although the content of that interview has been referred to by Advocate Boothman from time to time in his contentions, we have thought it right to pay no attention to it.
69. In addition to the evidence of the Complainant, evidence had been led by the Crown from other family members, but that evidence was supportive only of the occasions forming the basis for Counts 3 and 6.
70. In such circumstances, reliance had to be placed upon the content of the social media messages between the Complainant and the Appellant. The contention for the Appellant before this court was that, in circumstances where the only evidence supporting a conviction in respect of Count 5 was those messages, and where such messages were fundamentally inconsistent with the Complainant's own evidence and the evidence of other family members, the matter was not properly within the province of the jury. Albeit there was at least one message from the Appellant specifying that there were five times when he failed to stop having intercourse when called upon to desist, the actual evidence given by the Complainant directly contradicted that message. Further, the messages presented to the court were not a full chronological record of all messages passing between the Complainant and the Appellant and this gave rise to an issue as to the overall reliability of the messages for the purpose of basing a conviction.
71. For the Crown it was contended that the jury was entitled to stand back and take a view of the evidence as a whole. Whilst the Complainant's evidence had not been as clear as had been set out in the ABE Interview, there was sufficient to indicate that there had been occasions, other than the January and June 2019 incidents, when the Appellant had failed to desist from intercourse when asked to do so. The Appellant had accepted in messaging that he had failed to desist on at least five occasions when the Complainant had asked him to stop and, accordingly, that the Appellant cannot reasonably have believed that the Complainant was consenting. In particular, given the overall content of the messaging, the jury was entitled to conclude that the Appellant understood that in the messaging he was accepting the allegation that he had raped the Complainant by continuing to have intercourse notwithstanding her indication that she had withdrawn her consent.
72. In all the circumstances, Advocate Thomas submitted that there was no basis for interfering with the verdict on Count 5.
73. The relevant law which applies to the appeal in relation to Count 5 was set out in Lewis, Christmas, Foot and Cameron v AG [2013] (1) JLR 325. This Court there considered that the seminal authority was the case of R v Galbraith [1981] 1 WLR 1039, [1981] 2 All E.R.1060, (1981) 73 Cr. App. R. at page 124 where at p 127 the Lord Chief Justice, Lord Lane, said this:
"(1) If there is no evidence that the crime alleged has been committed by the Defendant, there is no difficulty. The Judge will of course stop the case.
(2) The difficulty arises where there is some evidence, but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the Judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case;
(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the Defendant is guilty, then the Judge should allow the matter to be tried by the jury."
74. The judgment in Lewis was given by Nutting, JA, who said this:
"200. There are a number of authorities which have flowed from the decision in Galbraith, adding to the jurisprudence on the point. One is a decision at first instance, R v Shippey [1988 Crim L.R. 767] in which Turner, J. held that the requirement to take the prosecution evidence at its highest did not mean "picking out all the plums and leaving the duff behind". He held that the trial judge should assess the evidence and if the evidence of the witness upon whom the prosecution case depended was self-contradictory and "out of reason and all common sense", then such evidence was tenuous and suffered from inherent weakness. He said that he did not interpret the judgment in Galbraith as meaning that if there are parts of the evidence which go to support the charge then that it is enough to leave the matter to the jury no matter what was the state of the rest of the evidence. It was, he said, necessary to make an assessment of the evidence as a whole. It was not simply a matter of the credibility of individual witnesses, or of evidential inconsistencies between witnesses, although those matters may play a subordinate role.
201. The test for an Appellate Court is whether the trial judge's decision was reasonable. In R v Thomas, a case where the Crown sought to appeal a trial judge's decision that there was no case to answer, Hallett, L.J. said: [2009] EWCA Crim 1682, at para. 41:
"The test is whether the judge's decision was 'reasonable'. The fact that we have found this a finely balanced decision makes our task straight forward.... It is common ground that Pitchford, J applied the right test and directed himself in appropriate fashion .... Given the gravity of this case, the decision to rule that the accused had no case to answer is not one that he (or indeed we) would take lightly."
202. In Bhojwani v Attorney General, and in reflection of these authorities, this Court emphasised (2011 JLR 249, at para. 64):
"We must be conscious again of the limits of our jurisdiction as an Appellate Court".
And (Ibid at para. 66):
"[We] have to remind ourselves that we are not the Commissioner. Our task is to decide whether the Commissioner could reasonably determine that there was a case fit to go to the Jurats, not that we ourselves might not have assessed the case in the same way ..... 'The test is whether the judge's decision was "reasonable". 'The high hurdle [..... of] a submission of no case to answer is doubly high at the appellate level".
75. We have applied these principles.
76. We note that in the context of an appeal on this ground, one disregards all the evidence that was adduced by the Appellant, including his explanations about the social media messages.
77. Both Advocate Boothman and Advocate Thomas took us in some detail to the content of the evidence of the Complainant and the social media messages. There is no doubt that during her evidence in chief, there were times when the Complainant gave some evidence which could have supported Count 5. However, on the Crown Advocate putting further questions to her in chief, in order to secure better detail in her responses, it became completely apparent that, whereas the content of Count 5 was before the jury as a specimen charge alleging numbers of occasions when, during what had hitherto had been consensual intercourse, the Complainant asked the Appellant to withdraw and he refused, the Complainant's evidence was that there were in fact only two occasions when this happened, both of which were the subject of other counts on the indictment, namely Counts 3 and 6. Advocate Boothman unsurprisingly did not return to this issue in cross examination because the evidence which the Complainant had given was contradictory of the case the Crown alleged under Count 5.
78. In his submissions to us, Advocate Thomas contended that the jury must have convicted on Count 5 on the basis of the text messages. That, of course, is not the test which we have to apply in relation to the present question, but it is implicit from his submission that the jury could not have properly convicted had the Complainant's evidence alone been the material on which the Crown relied. That must be so because, even in circumstances where she was not being made the subject of hostile cross examination, the Complainant made it plain that the refusal to withdraw during consensual sex occurred on only two occasions, namely the occasions which were subject to Counts 3 and 6 on the indictment.
79. The question for the learned Bailiff therefore was whether the social media messages were sufficient of themselves to found a conviction for rape on these other occasions. It is important to add the words "on these other occasions" because for the most part the social media messages, while potentially damning, do not refer to any specific occasion. In these messages, the Appellant admits to being a rapist and admits to not withdrawing from the Complainant at her request when he should have done so. For the most part, the social media messages are not inconsistent with the Complainant's own evidence that he only failed to withdraw from her on two occasions, namely those which were charged in Count 3 and Count 6.
80. There are three messages which could be taken to support the allegation in Count 5. The first was this exchange, which follows a passage when the Appellant has explained how sorry he is for all that he has done wrong to the Complainant.
"Appellant: I will do anything to prove it to you.
Complainant: Like fucking what?
Appellant: anything, say anything if I can do it I will.
Complainant: Go to mine and rape me? I bet you'd do that.
Appellant: X I am being serious, I will do anything you ask of me to make it up to your. But I won't do that, I will never do that again, never again.
Complainant: But you did that to me.
Appellant: I know I did.
Complainant: Multiple times.
Appellant: and I am sorry.
Complainant: Not just once, no you wouldn't be sorry because you loved it, admit it you loved it.
Appellant: I didn't enjoy raping you. No, I won't admit it because it isn't true."
81. The second exchange was:
"Complainant: You have said sorry all day but it can't make up the fact you raped and abused me many times.
Appellant: I know, and I am going to do more to show you how sorry I am."
82. The third exchange which could support the prosecution on Count 5 follows a Snapchat argument when the Complainant was berating the Appellant for calling her names. The Appellant then said:
"X please, I never meant to nearly kill you. I didn't do it on purpose. I was so drunk X I wouldn't hurt you like that on purpose. I am so sorry about that, X, I really am. The names I would call you where fat, spotty, slut. But I didn't, I didn't say them in a nasty way, every time I said them I was trying to make a bad joke, I wasn't serious about those names because you aren't any of them, that is why when [B] called you fat and meant I got mad and you asked me if you where actually fat I said no ofc you weren't. I meant that X you are beautiful. And no, it wasn't just once when I didn't stop when you asked me to, I didn't stop like 5 times, and I have nothing to say about that X, I really don't. I was just being selfish and thinking about myself."
83. As a first stage in the exercise of this review, each member of this Court has anxiously considered whether he would have withdrawn Count 5 from the jury on this evidence. Without exception, each would have done so. A specimen count alleging that something has happened more than once nonetheless does require that the tribunal of fact is sure that it happened at least once and that conclusion would not be open to a jury where, as here, it was not sure about the Complainant's evidence as to when she said it did happen. What has caused more difficulty is whether there is room for the learned Bailiff reasonably to have reached a different decision. We have reached the conclusion that there was not. This is not a case where the trial judge had any particular advantage over the appellate court because it is a question of an assessment of the social media messages, and that is just as easy or difficult as the case may be for us as it was for the learned Bailiff. In other words, the assessment of the Complainant in the witness box forms no part of the question which has now to be decided because, whether she was a credible witness or not, her evidence was not supportive of Count 5. The issue here is not whether the social media messages can supplement the complaint which the Complainant was making, but whether the social media messages could create a complaint where the Complainant in her evidence attested to none - even when specifically reminded of the texts and the circumstances she could not bring herself to say other than "I would have to reflect on it". The messages are in our judgment indicative of the offence and thus supportive of the charge but they are not of themselves capable of meeting the required standard of proof of the offence charged.
84. In our judgment, and with the greatest respect, we consider the learned Bailiff did not reasonably reach the conclusion that it was proper for a jury to convict on this material. We think that this is so on the strength of the material alone but our view of it is fortified by the fact that the Complainant admitted in her evidence that the messages which she had kept and shown to the Police were only a selection of the messages which passed between her and the Appellant. She was, in effect, exchanging messages with him in order to generate material upon which she could justify her complaint, as indeed she admitted, and clearly for that purpose messages which did not assist her in that respect could be deleted. In our judgment this raises serious questions about any assessment of what she retained.
85. Finally, we confirm that we have also considered the social media messages exchanged between the Appellant and the Complainant's sister. These are of little evidential value in themselves, because they are again relatively imprecise as to date or occasion when any rape might or might not have taken place. At all events, we have considered them, and we do not find that they change our view of the assessment of the evidence available at half time.
86. Accordingly, we consider that this ground of appeal is made out and the conviction on Count 5 must also be set aside.
87. Turning to the majority direction, the contention for the Appellant before this court was that it was vitiated by the failure to make clear to the jury that there was no pressure to reach a verdict notwithstanding the lateness of the day on a Friday afternoon the day after the trial was meant to conclude. There was, accordingly, an inherent risk that the jury might have felt compelled to return a decision before the end of the week. Indeed, the jury had been able to reach unanimous decisions in respect of all counts on the indictment except Count 5 and it was perfectly possible, given more time, that the jury might have been able to give an unanimous verdict in relation to all counts. In such circumstances, the conviction in respect of Count 5 was unsafe.
88. As regards the majority direction, there had been no indication from the jury that any of them would not be able to return on the Monday if required to do so and it was mere speculation that a juror might have felt under pressure to reach a verdict by the end of the Friday afternoon. Further, no indication had been given that the trial would conclude on the Friday and the experience of the jury at this particular hearing would have been that any time estimate was liable to be extended if the trial had not concluded. Further, the transcript showed that, when the majority direction was given without a warning as to time pressure, the learned Bailiff was not invited at that stage to add such a warning. Even if this court concluded that a warning as to time pressure would have been desirable, there was no basis for suggesting that a miscarriage of justice had occurred as a result of one not being given.
89. In our judgment there is nothing in this complaint. The learned Bailiff had informed the jury that they had as much time as they liked to consider their verdict when he concluded his summing up on the evidence that morning. He had said at that time:
"Accordingly, I must ask you to reach a verdict upon which each one of you is agreed. There is no rush, you must take as much time as you need for this purpose. Please now retire with the Viscount's Officer to the Jury Room to consider your verdicts."
90. That was at approximately 11:15 a.m., and the jury had been deliberating therefore for some 5 hours before the majority verdict direction was given. We can take it that in that period the members of the jury had had considerable opportunity to reflect upon each of the counts on the indictment and in particular to discuss those on which they were not unanimous. It is unsurprising that they should not take long to formulate the majority decision as they did.
91. Some judges might well have repeated, on giving the majority direction, the morning's admonition that the jury had as long as they liked to consider their verdict, especially so perhaps in the light of the fact that the weekend was almost upon them. It obviously would not have been wrong to repeat that admonition. However, this was entirely a matter within the discretion of the learned Bailiff, and we are quite satisfied that there was no injustice in taking the line which he did.
92. For the reasons given, the appeals against conviction succeed and the Appellant is discharged from the prosecution. We do not consider that it is appropriate to remit the matter to the Royal Court for a re-trial. In relation to Count 4, a re-trial would not in our judgment sit comfortably with the acquittal of the Appellant in relation to Count 3 and the Appellant will not be re-tried on that count. In so far as Count 5 is concerned, the setting aside of the conviction is based upon the determination that the prosecution did not do sufficient to get past half time. In those circumstances it would not be right to order a re-trial so that the prosecution could seek to supplement the evidence which was tendered on the last occasion.
93. The Appellant shall have his costs of the appeal as agreed with the Crown failing which they should be taxed on the standard basis.
Authorities
Sexual Offences (Jersey) Law 2018.
AG v Vaughan (unreported).
Jersey Law Review of October 2006, entitled "Grave and Criminal Assault - the landscape past and present" ("Whelan").
AG v Bardwell [1996 JLR N-16].
de la Haye v AG [2010] JLR 218.
Archbold - 36th Edition.
Coward v Baddeley (4 H&N at 480-481; 157 ER at 928).
Offences Against the Person Act 1861.
R v Cunningham [1957] 2 QB 396.
R v Donovan [1934] 2 KB 498.
R(T) v DPP [2003] Crim. L.R. 622.
Crime Act 2015.
Domestic Abuse Act 2021.
R v Wilson [1996] 2 Cr. App. R 241.
R v Emmett [1999] WL 477810.
R v BM [2018] 2 Cr App R 1, [2018] EWCA Crim 560.
R v Durante (1972) 56 Cr. App. R 708 (CA).
R v Fanning [2016] EWCA Crim 550, [2016] 2 Cr App R 19, at [15].
Lewis, Christmas, Foot and Cameron v AG [2013] (1) JLR 325.
R v Galbraith [1981] 1 WLR 1039, [1981] 2 All E.R.1060, (1981) 73 Cr. App. R.