Jersey Unreported Judgments

Common assault - judge's views as to the basis of the jury's conviction.

[2025] JRC 034

Royal Court

(Samedi)

31 January 2025

Before     :

R. J. MacRae, Esq., Deputy Bailiff.

The Attorney General

-v-

Gerard Eamon Maguire

C. Hall, Crown Advocate.

Advocate S. B. Wauchope for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

Introduction

1.        The Defendant was convicted of common assault as an alternative to grave and criminal assault by the jury on 12 December 2024.

2.        Subsequently, counsel wrote to the Court asking for the judge's views as to the basis of the jury's conviction under Article 50 of the Criminal Procedure (Jersey) Law 2018 ("the Law").

The offence

3.        The Defendant and the Complainant were known to each other at the time of the assault on 28 May 2024.  At that time they were both heavy drinkers.  They had been in a brief intimate relationship which ended some time before the assault.  The assault occurred in the Defendant's home after they had been drinking alcohol.  It was not clear whether the assault occurred before or after midnight.

4.        The Complainant's case was that at some point during the evening while she was sitting on the Defendant's sofa, the Defendant approached her, pulled out his penis and said "suck my cock".  She refused, which made the Defendant extremely angry.  The Complainant was pulled off the sofa and found herself on the carpet, face down.  The Defendant had his knee on her shoulder and at least one of his hands around her neck.  She told the jury that the Defendant was strangling her.  She said that she could hear the blood rushing in her ears.  The Defendant pulled her hair and banged her on the floor.  She said "My face was pushed into the carpet.  The right side of my face was flat on the floor.  He was squeezing my neck very hard with one hand.  I felt his feet kicking me.  He kicked my legs.  His knee was in my side.  I could not see.  There was pain all over".

5.        The Complainant went on to say that at some stage the Defendant had shaved off part of one of her eyebrows, at some point had bitten her on the nose and also had thrown a bottle at her.  She said that her memory was "fragmented".  It was unclear whether that was a consequence of the alcohol she had drunk, which was substantial, or the assault, or both.  She accepted she was drunk.

6.        Her next memory was sitting with the police in a neighbour's flat - which may well have been some hours after the assault.  The neighbour had called the police.  When the police arrived they found the Complainant in pain and distress.  The Complainant gave an account to the police broadly similar to the account that she gave to the jury.  The police officer who attended the scene said that the bruising on the Complainant looked red and fresh.

7.        Shortly thereafter she was examined by Dr Deryn Evans, the Forensic Medical Examiner.  The Complainant told Dr Evans that she had been strangled, kicked and punched and that prior to this the Defendant had asked her to "suck his cock".  When she had refused, he had assaulted her.  She told Dr Evans that she had been pinned down and held by her throat and that when this occurred she was unable to speak or breathe.  She said that she had lost consciousness whilst being strangled and wet herself in consequence.  She also said that the Defendant had thrown a bottle at her and bitten her nose.

8.        Dr Evans considered the areas of bruising on the Complainant's body, and in particular spoke about the areas of petechial bruising which were present in two places only, namely the right side of the Complainant's neck and on the left side of her neck.  Petechial bruising -� unlike the blunt force trauma which was characteristic of the other bruising on the Complainant's body -� was consistent with strangulation.  The Complainant also complained of tenderness to the front of her neck and pain on swallowing.  This is also consistent with non-fatal strangulation.

9.        The Defendant in his evidence said that he had purchased some vodka for the Complainant on the day of the assault and that she had followed him to his flat.  She had been drinking to the extent that she had wet herself.  The Defendant eventually had to wake the Complainant and throw her out of his house in the morning as he was worried about being late for work.  He dragged her into the hallway and as he managed to get her to the front door, he threw her cigarettes and her dirty tracksuit bottoms at her.  He told the jury that he had wished he had called the police.  He denied attacking the Complainant at all.

The relevant directions to the jury

10.     The case was left to the jury on the following basis in the directions given to them as follows:

"22.     An assault is committed if a person intentionally applies force on another person with hostile intent.

23.      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.

24.      In this case, [the Complainant] says that the Defendant assaulted her by pulling her hair, kicking and punching her and grabbing her by the throat.  He held her by the throat when she was on the floor and he was on top of her with his knee against her shoulder.  She said that the Defendant was strangling her and she could hear the blood rushing in her ears.  She was in a lot of pain.  Her face was pushed into the carpet and the Defendant was squeezing her neck very hard with one hand.

25.      The Defendant denies touching [the Complainant] in the way she alleges.

26.      If you accept the Crown's case then you may think that this was a deliberate hostile assault upon [the Complainant] and in those circumstances you will no doubt convict the Defendant of grave and criminal assault or the alternative offence of common assault.

27.      Accordingly, if you are sure that [the Complainant] is telling the truth about this matter and that this was a serious assault then your verdict will be guilty of grave and criminal assault.

28.      If you are satisfied that she was telling the truth about the assault but you are not sure that this was a serious assault, then your verdict will be guilty of common assault.

29.      If you think the Defendant's account that he never assaulted [the Complainant] in the way she alleges is or may be true and that he only forcibly manhandled her for the purpose of removing her from his flat in the way that he describes, then you will find him not guilty.

30.      Accordingly, there are three verdicts open to you on Count 1:

(i)         Guilty of grave and criminal assault;

(ii)         Guilty of common assault; or

(iii)        Not guilty

31.      The Defendant has admitted his guilt on Count 2, the count of common assault, on the footing that he expelled [the Complainant] from his flat in the morning against her will, pulling and pushing her and throwing a cigarette pack at her but not kicking, punching or holding her around the neck, and causing her no injury save for possible bruising to her wrists.  In the event of you finding the Defendant not guilty on Count 1, I will direct you in accordance with his admission to return a guilty verdict on Count 2."

11.     As can be seen from the last direction, during the trial the Defendant admitted an offence of common assault on the basis of his account.  The jury were directed that if they accept his account then they should find him not guilty on Count 1 of the indictment, the offence of grave and criminal assault.  It was only if they accepted the Complainant's account that they could return a verdict of common assault on Count 1 -� as per paragraph 28 of the directions set out above.

12.     This is the verdict that they returned.

Article 50

13.     Article 50 provides:

"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."

14.     This is the third recent case where a jury has found the Defendant guilty of common assault as an alternative to grave and criminal assault in circumstances where there was, inter alia, an allegation of non-fatal strangulation.  The other cases are AG v Williams [2022] JRC 103 and AG v Withe [2023] JRC 123.

15.     Under Article 50, 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.

Decision

16.     Owing to the way in which this case was left to the jury, there is not in fact more than one possible interpretation of the factual basis for the jury's verdict.  Further, the medical evidence was consistent with the complaint made by the Complainant.

17.     Without wishing to derogate from the confidence I have in the Complainant's overall account, having regard to the evidence as a whole and the verdict of the jury, the Defendant should be sentenced on the Crown's case as summarised above, absent the reference to the bite (upon which the medical evidence was equivocal), the throwing of the bottle and the shaving of the eyebrow.  However, having regard to the core of the complaint made by the Complainant, that means that the Defendant must be sentenced in accordance with my summary of the prosecution case at paragraph 24 from the extract above of the directions given to the jury, as supported by the evidence of Dr Evans and the other evidence in the case.

Authorities

Criminal Procedure (Jersey) Law 2018.

AG v Williams [2022] JRC 103.

AG v Withe [2023] JRC 123.