Jersey Unreported Judgments

Inferior Number Trial - domestic abuse behaviour - grave and criminal assault.

[2023]JRC221

Royal Court

(Samedi)

15 November 2023

The Attorney General

-v-

Addison Thomas Mazurke

Crown Advocate L. Sette for the Attorney General.

Advocate G. F. Herold-Howes for the Defendant.

JUDGMENT

THE lieutenant BAILIFF:

1.        On 27 October 2023 Addison Thomas Mazurke ('the Defendant') pleaded not guilty to an indictment containing one count of grave and criminal assault and one of domestic abuse.  We ordered, inter alia, his trial before the Inferior Number and indicated that our reasons for so ordering would follow.  These are those reasons. 

2.        This is a mixed indictment, alleging the commission of both customary law and statutory offences. 

3.        Article 48 of the Criminal Procedure (Jersey) Law 2018 ('the 2018 Law') provides, where relevant, as follows:

"(3)     This paragraph applies where - ...

(b)        a defendant's indictment charges 2 or more offences at least one of which is an offence under customary law and the other an offence under an enactment.

(4)       Where paragraph (3) applies, the Royal Court shall decide, having regard to the nature and gravity of the offence and after hearing any submissions from the defence and the prosecution, the method by which the defendant shall be tried."

4.        Advocate Sette invited us to order that the trial be before the Inferior Number.  For the defendant, Mr Herold-Howes urged us to order trial by jury.  Following those opposing submissions, it thus befell us to decide upon the appropriate mode of trial.

5.        Commissioner Bailhache closely examined Article 48 in his judgment in Attorney General v Akhonya [2022] JRC 176.  Whilst the judgment provides uniformly helpful guidance in considering the application of Article 48 in general, we have had particular regard to paragraph 20, where he said: 

"... The fact that that objective (i.e. the Overriding Objective as set out at Part 2 of the 2018 Law) includes dealing with cases efficiently and expeditiously and having regard to the needs of other cases, shows that the rights of the defendant to a jury trial under Article 48(2) are subordinated to the wider factors."

6.        Counsel before us were agreed that Article 48(4) effectively removes a defendant's right to elect to be tried by a jury, albeit defence counsel put it somewhat more neutrally when he submitted that that right had been 'compromised' by the provision.

7.        The indictment in Akhonya contained two counts, one of knowingly providing false information for the purposes of intended marriage, contrary to Article 76(1) of the Marriage and Civil Status (Jersey) Law 2001, and one of a serious customary law offence, bigamy.  The learned Commissioner held that the first count of the indictment was a 'step along the way' to the commission of bigamy, and in all the circumstances of the case, exercised his discretion in favour of a trial by jury.

8.        The circumstances of the present case could hardly be more dissimilar.

9.        We are somewhat hampered by a lack of evidence in respect of the alleged grave and criminal assault.  All we have is the Crown's allegation at Paragraph 14 of its Summary of Facts that the defendant, who was wearing trainers, stamped upon the complainant's back while she was lying naked on the bathroom floor of her home; we have seen no medical reports or photographs of such injuries as the complainant may have suffered.  Whilst it is trite law that a kick with a shod foot generally constitutes an act amounting to grave and criminal assault in this jurisdiction, on the admittedly scanty evidence we have, it is our initial view, having regard to the tests set out in Harrison v Attorney General [2004] JLR 111, that the assault alleged lies towards the bottom of the scale of seriousness of grave and criminal assaults and perhaps could even have been charged as a common assault.

10.      Indeed the Crown submitted that, but for the Domestic Abuse (Jersey) Law 2022 having come into force on 21 June this year, Count 1 of the indictment, alleging the commission of a grave and criminal assault on 18 May 2023, would likely have formed part of the domestic abuse allegations. 

11.      At paragraph 24 of his judgment in Akhonya the learned Commissioner said:

"I also accept that there would be a potential argument that to remove the Defendant's right to elect a jury trial under Article 48(2) because the Crown has preferred an additional and statutory charge which does not add much to the overall case would be unjust."

12.      We respectfully agree.  But nothing could be further from the case in this prosecution.  The domestic abuse allegations number five.  They include, non-exhaustively, verbal abuse, serious and deeply unpleasant threats, kicking the complainant's front door, shouting, humiliating and derogatory social media posts, acts of vandalism such as besmirching the complainant's front door with bleach and sardines and, on another occasion, smashing a window.  The complainant got to the stage, she told the police, whereat she was frightened to leave her home.

13.      Article 48 (4) of the 2018 Law requires us to have regard to the "nature and gravity of the offence" - an expression that Commissioner Bailhache held refers to the entirety of the offences charged (Akhonya, paragraph 17).

14.      In our judgment the domestic abuse allegations, taken cumulatively, are significantly more serious than that of the alleged assault.  This factor alone would militate strongly in favour of an Inferior Number trial.

15.      The alleged domestic abuse took place over a period of almost two months, whereas the alleged assault took place on a single date.  Mr Sette submitted that most of the trial court's consideration will therefore relate to the domestic abuse allegations.  He also contended - though we consider that this contention was more by way of an amplification of the submission to which we have just referred - that the assault charge relies predominantly on the evidence of two witnesses, whereas the domestic abuse allegations involve that of five, along with 'countless' police officers; in other words, the evidence to be given in support of the domestic abuse charge will take significantly longer to be dealt with than that in support of the alleged assault.  We accept those combined contentions.  The principal focus of the trial will be on the statutory offences alleged, and this points strongly, if not inevitably, towards an Inferior Number hearing.  

16.      Mr. Herold-Howes submitted that this was not a complex case and directed our attention to paragraph 18 of the Akhonya judgment.  We agree that there will be some cases, for example of sophisticated fraudulent activity, or arcane forensic evidence, which might be more suitable for the expertise and/or experience of the Jurats than a jury.  We accept the defence submission that this is not such a case.  But complexity, or the lack of it, is but one of several factors that we have to weigh in the exercise of our discretion. 

17.      Defence counsel also submitted that the domestic abuse allegations are minor, albeit unpleasant.  As we have said at paragraph 14 above, we do not agree; the cumulative effect of those allegations is serious. 

18.      Another important consideration is that the dates available for a trial before the Inferior Number, being 11 March 2024 for five days, are more proximate by almost six weeks than those that would be available for an Assize trial, namely 20 May next year (also for five days).  In our judgment an Inferior Number trial would accordingly be significantly more compliant with the Overriding Objective, which requires at its core that criminal cases should be dealt with efficiently and expeditiously. 

19.      Taking all the circumstances into account, we exercised our discretion to the effect that the defendant shall stand his trial before the Inferior Number and ordered accordingly.

Authorities

Criminal Procedure (Jersey) Law 2018.

AG v Akhonya [2022] JRC 176.

Marriage and Civil Status (Jersey) Law 2001.

Harrison v AG [2004] JRL 111.

Domestic Abuse (Jersey) Law 2022.