Jersey Unreported Judgments

Hearing (Criminal) - assault.

[2022]JRC103

Royal Court

(Samedi)

4 May 2022

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 28^th 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 15^th 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 7^th 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. 

Article 50

"Sentencing where facts in dispute

(1)       This Article applies where a defendant found guilty is to be sentenced, and the defence disputes the facts upon which the defendant was found guilty.

(2)       Where this Article applies, the trial court -

(a)        shall, if invited by the defence or prosecution to do so; or

(b)        may, of its own motion,

communicate its view of the facts to the sentencing court. 

(3)       Where, under paragraph (2), the trial court has communicated its view of the facts to the sentencing court, the sentencing court may sentence the defendant on the basis of the facts so communicated.

(4)       In this Article -

(a)        "trial court" means -

(i)         where the defendant was tried by the Royal Court sitting with a jury, the Bailiff, or

(ii)        where the defendant was tried by the Inferior Number of the Royal Court sitting without a jury, the Bailiff and Jurats;

(b)        "sentencing court" means the Royal Court sitting as the Inferior Number or Superior number, as the case requires."

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: 

"In our view the correct approach by the judge, after a trial, to the determination of the factual basis upon which to pass sentence, is clear. If there is only one possible interpretation of a jury's verdict(s) then the judge must sentence on that basis. When there is more than one possible interpretation, then the judge must make up his own mind, to the criminal standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part) most favourable to the defendant."

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.  

"The indictment - what the Crown must prove

Count 1 and Count 2

25. Counts 1 and 2 alleged that the Defendant committed a grave and criminal assault on Miss D on two separate occasions on 15th August 2021 - in the living room and the garden respectively. 

26. The directions I give to you in relation to these counts are identical and accordingly will not be repeated. 

27. An assault is the unlawful application of force on another person with hostile intent. 

28. In Jersey there are two kinds of assault, common assault and grave and criminal assault.  The Defendant is charged with the more serious of these, grave and criminal assault.  The difference between the two kinds of assault is merely a question of degree.  An assault becomes a grave and criminal assault if the nature and scale of the assault is grave, i.e. serious. 

29. As you know, Count 1 relates to the assault Miss D spoke about in the house, and Count 2 relates to the assault in the garden.  The assault in the house included, on the Crown's case, Miss D being pushed to the ground, with the Defendant's knees either side of her neck with the Defendant strangling her between his knees and shouting "fucking choke" whilst Miss D struggled to breathe.  This was followed by a similar incident in the same room shortly thereafter, in that Miss D was also put to the floor - this time lying on her front with the Defendant's knee in her back.  If you accept Miss D's account, subject to what I have to say about self-defence below, then you will have no difficulty in finding the Defendant guilty of grave and criminal assault. 

30. As to Count 2, that relates to the incident in the garden when the Defendant attacked Miss D by the trampoline.  He stamped on her feet, slammed her to the floor.  Her mother could hear what was happening as she was on the telephone.  Subject to what I have to say below, if you accept Miss D's account, then you will want to consider with care whether or not the proper verdict is guilty of grave and criminal assault, or guilty of common assault.  

31. The Defendant denies these offences.  In relation to any violence that he offered, he said that he was acting in self-defence.  He said that the first blow was from Miss D - punching him in the nose in the living room.  Thereafter he restrained her; there was a struggle when Miss D tried to get into the kitchen when he was on the telephone to the police, and that subsequently he "frog marched" Miss D out of the house with his hands on the top of her shoulders.  He denies touching Miss D in the garden at all.  To the extent that he is prepared to attribute any injuries consequent upon his actions to himself, those were caused when the Defendant was acting, he says, in self-defence.  If you think the Defendant's account is or may be true, then you may take the view that he was acting in lawful self-defence.  I will now direct you on self-defence. 

32. First, you must ask yourself whether the Defendant honestly believed that it was necessary to use force to defend himself at all.  If you are sure that he did not honestly believe it was necessary to use force to defend himself, he cannot have been acting in self-defence and you must return a verdict of guilty.

33. But if you think the Defendant did honestly believe or may honestly have believed that it was necessary to use force to defend himself, you must move on to the second question which is to decide whether the type and amount of force the Defendant used was reasonable.  Obviously a person who is under attack may react on the spur of the moment and he cannot be expected to work out exactly how much force he needs to use to defend himself.  On the other hand, if he goes over the top and uses force out of all proportion to the anticipated attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable.  So you must take into account both the nature of any anticipated attack on the Defendant and what he in fact did.

34. If you are sure that the force the Defendant used was unreasonable, the Defendant cannot have been acting in lawful self-defence and you must return a verdict of guilty.  If you think the force that the Defendant used was or may have been reasonable, then you must find him not guilty.

35. The question of self-defence only arises if you think that the Defendant's account is or may be true.  It is for the prosecution to prove that the Defendant was not acting in self-defence.  The Defendant does not need to prove that he was.  If you are sure that Miss D is telling the truth then no question of self-defence arises and your verdict is likely to be one of guilty.

36. Accordingly, in relation to both counts on the indictment, there are three verdicts open to you: guilty of grave and criminal assault, guilty of common assault and not guilty."

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. 

The parties' contentions

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. 

Authorities

Criminal Procedure (Jersey) Law 2018.

Regina -v- King [2017] EWCA 128.

Archbold (2021 Edition).

Byrne [2002] EWCA Crim 1975.