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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Page v AG (Court of Appeal : Appeal (Criminal)) [2025] JCA 091 (2 April 2025) URL: https://www.bailii.org/je/cases/UR/2025/2025_091.html Cite as: [2025] JCA 091, [2025] JCA 91 |
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Appeal against conviction and sentence for grave and criminal assault
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Before : |
Ms Clare Montgomery KC, President; |
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Between |
Andrew Scott Page |
Applicant |
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And |
The Attorney General |
Respondent |
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The Applicant in person
Advocate Christina Hall for the Respondent.
JUDGMENT
Clare Montgomery JA:
1. This is the judgment of the Court on the Applicant's renewed application for leave to appeal his conviction, for leave to appeal his sentence and his related application for the admission of fresh evidence on his conviction appeal.
2. The Applicant was charged with a grave and criminal assault committed in December 2022 at Flat 26 Ed Le Quesne House (Flat 26) on a woman with whom he had had a relationship (the Complainant).
3. A police investigation started when the Applicant attended Police headquarters on 22 December 2022 to tell the Police that, in the course of a domestic argument, his medication had been flushed down the lavatory by the Complainant and he needed a Police reference number in order to obtain a replacement prescription. The Police noticed blood on the Applicant's clothing and officers attended Flat 26 where they found the Complainant. She told police in due course that she had been assaulted by the Applicant.
4. The Applicant denied any assault on the Complainant in his interview under caution. He told Police that there had been an argument at some point on 20/21 December 2022 and the Complainant had assaulted him and threatened him with a knife.
5. The Applicant, who appears before us in person, had legal advice pre-charge and leading up to his trial. When counsel ceased to act the Bailiff appointed an amicus to assist the Applicant and to conduct the cross examination of the Complainant at trial.
6. The Applicant was in due course tried in the Royal Court before the Bailiff and a jury. The trial lasted 4 days between 15-18 April 2024. The Applicant was convicted by the unanimous verdict of the jury on 18 April 2024.
7. On 20 August 2024 the Applicant was sentenced by the Superior Number (the Bailiff sitting with Jurats Dulake, Austin-Vautier, Hughes, Entwistle and Berry) to 4 years 6 months imprisonment for the assault. He was sentenced to an additional 2 months consecutive in respect of a larceny to which he pleaded guilty.
8. The grounds of appeal are not entirely clear. It does not appear that any criticisms are made of the summing up to the jury, but instead the grounds advanced concern the conduct of the trial. The Applicant's central contention appears to be that the verdict was unreasonable or unsupported by evidence. In addition, he makes a number of complaints about procedural issues in relation to the treatment of bad character evidence, an amendment to the dates charged in the indictment, the addition of an alternative lesser charge, and the treatment of the evidence of the Police medical officer. He also complains about the failure to provide the jury with certain photos of his injuries, with an unredacted copy of his interview and with a copy of his defence expert report.
9. Section 26 of the Court of Appeal (Jersey) Law 1961 provides that "the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal."
10. Appropriate directions having been given about the burden and standard of proof, the case was left to the jury on the basis that the central question was whether the Complainant was telling the truth? "Did she, after an afternoon shopping and visiting the pharmacy, return to her flat with the Defendant who then became increasingly argumentative and difficult because he had taken a large number of tablets, leading to a heated altercation and then violence at his hands in which she was, amongst other things, kicked and thrown around the room and strangled. This is what the Crown say. Or is it at the Defence says, a situation where she was possessive and flew into a rage when, following arguments, the Defendant made to leave the flat, packing his belongings, and she attacked him, as he describes, jumping on his back and scissoring him and inflicting the injuries that she sustained was simply as a result of the Defendant defending himself from those attacks? That, of course, is exactly what you have to decide."
11. The case against the Applicant was entirely dependent on the reliability and honesty of the Complainant. The Complainant is and was a vulnerable woman with a history of mental illness. On her account she had been subjected to a deliberate and sustained attack by the Applicant in the course of a domestic argument at Flat 26 in the evening which started after the Applicant had taken alcohol and prescription medication.
12. The Complainant said that in the course of the attack the Applicant tried to gouge her eyes. She said that Applicant had grabbed her around the throat, applying pressure to her windpipe, held a knife to her stomach, placed all his weight on her causing her to struggle to breathe, grabbed her hair and hit her head against the doorframe and kicked her in the stomach and back.
13. The account given by the Complainant was partly supported by the evidence of Dr Bellamy who reported that, on examination on 22 December 2022, she saw 5 injuries on the Complainant, 3 of which were consistent with blunt force assault to the neck and movement across the skin surface. The bruises and linear abrasions she saw were consistent with the Complainant being held around the neck with force and consistent with attempted choking/strangulation. One of the injuries in particular appeared to be a thumb print bruise under the Complainant's jaw. The evidence was that these injuries could have been caused by the attack described by the Complainant. The Applicant argues that this evidence should not have been admitted.
14. The most significant support for the Complainant's account was found in previous consistent statements contained in text messages sent to the Applicant during the course of 21 December 2022 which contained repeated detailed descriptions of an assault she said the Applicant had carried out on her. For example:
15:11 - " Its ok to grab me and strangle me 3 times to the point where I couldn't breath & felt like I was Gona pass out! Plus throwing me around and over my furniture yeah. Trying to slam my head off the wall/door frame. "
15:18 - "You're a totally different person on them things thanks for marking up my neck, legs back, shoulders and throat. "
15:37 - "I've got bruises on my hips and legs also arms shoulders n neck. "
16.55 - "You've fukd me up Andrew badly (may not of smacked me in the face as such but u tried gouging my eyes out and all the rest) do u even realise ur own strength!"
17:08 - "If u had some thing planed why didn't u just say instead of making up bullshit reasons to kick off I told u I was struggling mentally and u said u wanted to help but that's toxic and dangerous. What if u had held me to long and I passed out?"
18:18 - "You've seriously hurt me and I don't just mean mentaly, I mean physically! "
15. The contents of the texts were not challenged or denied by the Applicant when he received them. Indeed the Applicant texted an apology just after midnight on 22 December 2022 - "I hope Ur feeling a bit better, sorry on my part the last thing I wanted was for us to have a set to, gutted, I can come collect what I need to if u ok. [ ] I'm sorry for getting upset, I really mean that."
16. The timing of and detail in the Complainant's messages was not explained by any apparent motive for the Complainant to give a false account of events as they were sent well before 09:12 on 22 December 2022 when the Police became involved. Without an explanation for the content of the messages, they provided compelling contemporaneous evidence of an assault on the Complainant by the Applicant
17. That said, the Complainant was notably vague and contradictory in the oral evidence she gave about timing and the circumstances surrounding the assault. She was also not able to provide a complete account of her telephone and message contacts with the Applicant. Her evidence that the Applicant had left his phone at Flat 26 seems unlikely to have been correct. Her account about the events other than the assault was open to serious criticism.
18. The Applicant gave evidence in his own defence. He denied that the Complainant was either honest or reliable. In his evidence he said that, although there had been a verbal disagreement between them on the evening of 20 December 2022, that had led to him retreating to the Complainant's room in Flat 26 shortly before 21.33, there had been no physical assault and that he left the flat in the afternoon of 21 December 2022, even though the Complainant had wanted him to stay.
19. He maintained that the only violent physical contact between himself and the Complainant was when he was assaulted by the Complainant on the morning of 22 December 2022 when he had returned to Flat 26 to retrieve his property and that he had acted only in self defence in fending her off. He said that in the course of this incident he had sustained injuries and that it was possible that the Complainant had been injured as he forced her off him.
20. The Applicant relied on the evidence placing his phone at Flat 26 at 0700 and 1500 on 21 December 2022 when the Complainant said that he had left in the early hours. He also relied on the evidence that showed his phone was not at the flat after 1500 on 21 December 2022.
21. The Applicant pointed to multiple attempts by the Complainant to contact him on 21 December 2022 and various friendly overtures by the Complainant. The Applicant said it was the Complainant who invited him back to the flat on 22 December when she then attacked him and flushed his epilepsy medication away.
22. Some evidence was given by both the Complainant and the Applicant about their prescribed medication. The Applicant contends that the Complainant lied when she denied having taken clonazepam. He points out that it had been prescribed for her and had been dispensed to her on the morning of 20 December 2022. Part of the fresh evidence deals with this issue.
23. However the evidence about the Complainant's medication was more nuanced than the Applicant allowed in his written argument. The Complainant was asked whether "you are also on that medication [clonazepam]". She said she was not, but she accepted she had been prescribed it on 20 December 2022. She claimed she had stopped taking it straightaway. Her evidence was not, as Advocate Nicholls suggested, incorrect. She was answering a question framed in the present tense. The provision of a prescription in December 2022 did not make that answer incorrect.
24. In support of his appeal against conviction, the Applicant relies on other evidence which he considers shows that the Complainant gave false and deliberately misleading evidence at trial. He has pointed in his grounds of appeal to the Complainant's refusal to admit that she sent loving messages to him after she says she was assaulted and her denial that she had been told that the Applicant had made a complaint against her at the police station when she first spoke to the police. However the Complainant's evidence was simply never clear. She agreed she tried to communicate with the Applicant and "keep it civil". She was also unclear about what she was told by the Police.
25. The Applicant also points out that the Complainant did not seek medical attention and did not call for help and that none of their neighbours reported hearing any cries for help. He also points to the evidence of the phone expert as undermining the Complainant's evidence of the relevant timings and the presence or absence of his phone. He points to a number of discrepancies between the accounts given by the Complainant to the Police and the evidence she gave to the Court.
26. The Applicant considers that the verdict of the Jury was not reasonably open to them by reference to the evidence at trial and that, by reference to material that is sought to be admitted as fresh evidence, the conviction should be set aside as a miscarriage of justice.
27. We have considered all the evidence, including the fresh evidence de bene esse. We are unable to conclude that the evidential issues raised by the Applicant are capable of undermining the central evidence of the Complainant as to the assault on her by the Applicant. No amount of peripheral error or even deliberate evasion and lies about circumstantial matters was necessarily determinative of the central question as to whether there was an assault carried out at Flat 26 and if so, who assaulted whom.
28. The case at trial came down to whether the jury were sure that the Complainant was telling the truth when she said the Applicant attacked her in her home. The jury were well aware of the significant discrepancies in relation to the Complainant's evidence on a number of peripheral issues including the surrounding circumstances. It was addressed on the basis that her evidence was at best selective and in some cases, demonstrably wrong. The jury was nonetheless able to reach a unanimous verdict. We do not consider that the fresh evidence identified by the Applicant would have made any difference to the verdict at trial. Even if the Complainant is now shown to be untruthful or unreliable in relation to other events and circumstances, the central issue at the trial was whether she was untruthful or unreliable about the assault. None of the further evidence casts any sufficient light on this question to alter the verdict.
29. The Applicant makes a number of complaints about the Bailiff's treatment of bad character evidence. If there was any substance in these complaints they should have been raised at trial. The Bailiff was not asked to give a direction in relation to the character evidence that had been given by the Complainant and that was also given by the Applicant. We consider that a direction on character was not required. Any direction would have drawn attention to the evidence that had been given about character which was likely to be unhelpful to the Applicant.
30. The Applicant also did not suggest at trial that the evidence about character that was given should have led to the discharge of the jury. The Applicant contends that the Bailiff should have offered him the opportunity to apply for a discharge since he was representing himself. In our view the Bailiff was under no duty to intervene to point this out. Insofar as the Applicant was at a disadvantage in representing himself, that was a disadvantage that he had chosen for himself. Moreover he had access to the specific advice of the Amicus on this issue.
31. In addition it is clear that the Bailiff had effectively defused the impact of the Complainant's evidence about the Applicant's character by pointing out that it was unfair to the Applicant after the Applicant had interjected to say the Complainant's evidence was rubbish. He also allowed the Applicant significant leeway in the defence case in giving evidence and calling his friend, Mr Michael Hahassy to comment on his good character.
32. In any event the character evidence, such as it was, emerged as the result of character evidence necessarily forming part of the narrative and therefore the essential background to the case. The Complainant described in the course of her evidence in chief that the Applicant had behaved strangely and had stolen items from her local shop before she said she was assaulted. She also said that that he and a friend had threatened her after the assault. However all of these remarks were part of the background. The evidence was essential to the understanding of the build up to and the aftermath of the events.
33. In the course of cross examination the Complainant also added that the Applicant sold his prescribed medicine and abused it. However this was in the context of challenging questions about the Complainant-�s own drug use. In addition when these assertions were made the Bailiff intervened and made the point that the evidence was unfair.
34. The Applicant also raises the possibility that unredacted text messages may have been seen by the jury. We have considered the transcript of what happened on Day 1 of the trial. It is clear to us that the jury were not shown the unredacted text messages. The Bailiff ordered that the unredacted text message were not to be provided to the jury. The opening remarks by the Crown stated that the jury would look at the documents in the jury bundle other than the indictment "when it is appropriate to do so". There is no evidence that at this stage the bundle contained the unredacted text messages. The fact therefore that the jurors took the bundles with them when they left court after the opening does not mean they took the unredacted texts with them. It is clear from the transcript of the afternoon session that divider 8 of the jury bundle had nothing behind it, since the Crown merely asked the jurors to put the redacted texts behind that divider.
35. The Applicant complains in any event about the failure to make further redactions from the texts that were placed before the jury. We are unable to accept that this gives rise to any viable ground of appeal. The texts formed necessary background evidence to the events in issue. They were admitted by agreement with Mr Page who made appropriate admissions.
36. We do not consider that the treatment of the character evidence by the Bailiff gives rise to any viable ground of appeal.
37. The Applicant suggests that his full interview under caution should have been exhibited. However the Applicant has not identified anything in the full interview that would have significantly advanced his case. Furthermore, the use of the interview was discussed at trial as was the fact that the edited interview had been admitted by agreement. The Applicant was told that in the absence of medical evidence it was not open to him to apply to exclude the interview, having agreed to admit the transcript of the interview.
38. Although the Applicant did say at trial the interview was unfair because he was not fit to be interviewed, and has pointed to a portion in the unedited interview where he explained to the police that he did not think he was fit for interview, this was not a point that he ultimately pursued to the point of seeking the exclusion of the interview or the re-introduction of the edited passages at trial. As he admitted in cross examination, the Doctor had assessed him as fit to be interviewed and he had signed the admissions accepting the introduction of the edited interview into evidence. He cannot now raise these points having not done so at trial. It does not give rise to any unfairness or appealable irregularity.
39. Originally the complaint was made by the Applicant that the Judge directed the jury after they had been in retirement for 1 hour that they could consider a charge of common assault, if they were unable to agree on the charge of grave and criminal assault. The Applicant contends that this undermined his case and that "there was no way the jury could consider such a verdict."
40. The problem with this as a ground of appeal is that, it was wrong about the circumstances of the amendment. The direction was discussed before the summing up at the start of day 4 of the trial and no objection was taken to it. The Amicus addressed the possibility of the alternative charge in his closing speech on behalf of the Applicant. The Applicant now accepts that the direction was discussed before speeches.
41. He remains concerned that leaving the lesser charge undermined his argument that the case against him should be dismissed if the jury could not be sure that the Complainant had been injured in the way she claimed. The Applicant contends that the jury should not have been given the option to convict on the basis that the Complainant's evidence was only partly true.
42. However, it is clear that this is not the way in which the Jury approached the case. The jury convicted on grave and criminal assault and therefore did not consider the lesser alternative.
43. Finally, it was not necessary in any event for the Court to add to the charge, as a conviction of a lesser offence was always a permissible outcome of the trial since the definition of the greater offence (grave and criminal assault) necessarily included the definition of the lesser offence (common assault) as the Crown pointed out in opening. The existence of the possibility of a conviction on a lesser offence cannot provide any ground of appeal in this case.
44. Complaint is made that leave was given to amend the date charged in the indictment from originally specifying 20-21 December 2022 to specifying a date between 19 and 23 December 2022.
45. Article 46 of the Criminal Procedure (Jersey) Law 2018 provides that: "(1) Where, before trial or sentencing, or at any stage of a trial, it appears to the Royal Court on the application of the prosecution, that the indictment requires amendment for any reason or is otherwise defective, the Court shall make such order for the amendment of the indictment as the Court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice."
46. It became clear from the first day of the trial that the Complainant was not sure of the day on which she said the assault on her had taken place. She explained "my memory is awful these days and I struggle. I wasn't really paying attention to the time. Dates roll into each other." In those circumstances it was not only legitimate but appropriate to amend the charge to reflect the Complainant's evidence by specifying a range of dates, given the confusion about the timing of the assault. It was not necessary for an amendment to be made in accordance with the principles identified in R v Dossi (1918) 13 Cr App R 158 (approved by this Court in Lewis, Christmas, Foot and Cameron v AG [2013] JCA 078 at [328]) but the application was made as a matter of good practice so as to reflect the evidence as it emerged.
47. The amendment was made without objection at the close of the Crown case on day 2 of the trial before the Applicant gave evidence. No suggestion was made that this caused any difficulty for the defence. The Amicus told the Bailiff that he had discussed the possibility of an amendment with the Applicant and that it was unlikely to be opposed and there was no suggestion of prejudice.
48. The decision in Wright v Nicholson [1970] 1 WLR 142 provides authority for the proposition that where the defence may have been prejudiced in the preparation of their case by a divergence during the evidence from the date specified in the count, the trial may be adjourned to allow them to respond to the altered situation.
49. The defence, whether in the form of the amicus or the Applicant, had the opportunity to object to this amendment and to seek an adjournment, however no objection was taken and no application for an adjournment was made. In our judgment no possible injustice resulted from the amendment. It does not provide an arguable ground for any appeal.
50. The Applicant claims that the Bailiff erred in giving the jury an expert evidence direction and allowing Dr Zosia Bellamy, the Police Medical examiner, to give video recorded evidence as an expert. He states that his advocate was instructed to oppose the application to admit the evidence of her examination of the Complainant and the Applicant. Privilege has not been waived in order for the Court to make any informed decision as to the instructions given by the Applicant. However, there is no need for the Court to call for a waiver in relation to those instructions since, even without a waiver, it is apparent that this ground of appeal is hopeless.
51. The Applicant did not raise any objection to the video recording and had a full opportunity to challenge the evidence and did so with the assistance of the Amicus, who cross examined on the basis that the Doctor was a "well qualified medical practitioner" but dealing with matters as "a professional witness of fact." The cross examination was not however restricted to questions of fact. It also raised questions of the likely causation of some of the clinical observations (the age of the bruising and the mechanism of any blunt force trauma) and drew attention to the absence of any visible injuries to the Complainant's rib cage or her head, eyes or hair. The Amicus also sought to establish that the injuries to the Applicant could have been inflicted on him by the Complainant in the course of a fight in which he had acted in self defence.
52. It appears to us that in the circumstances the evidence was obviously a mix of expert fact and opinion which the Applicant sought to rely on. He had a full opportunity to put his case, including the suggestion which he now raises that some of the bruising to the Complainant's neck could have been a love bite.
53. He also had the opportunity to raise any points about expertise or bias when the Doctor was examined. He did not do so. There is nothing to suggest that the Doctor lacked the qualifications to express the limited forensic opinions that she did. There was also no evidence that any claimed breach of the rules in relation to expert evidence had any material effect on the evidence or the fairness of the process.
54. The Applicant claims that the opening question asked by the Amicus (set out at AD 549), led him to believe that the Doctor's evidence would not be given at trial. He states in his grounds that had he realized the video would be played to the jury he should have had his own expert medical evidence. It is not clear to us what this evidence might have achieved. In any event it was not an application that was pursued by the Applicant. More importantly the Applicant can have had no doubts that the evidence of the Doctor was going to be played at trial. This was stated clearly on Day 1 of the trial and the need to set up video screens was explained. The Applicant and the jury were told that this evidence would be given in a pre-recorded form.
55. We are unable to discern any injustice having been occasioned to the Applicant in relation to the treatment of the Doctor's evidence. The Applicant took full forensic advantage of the evidence of the Doctor which he argued was inconsistent with the assault described by the Complainant. He had the benefit of being able to draw attention to his own injuries through the evidence of the Doctor. He also cannot complain that the photos of his injuries were not before the jury. They are present in the bundle at ZZ27-28.
56. So far as the proposed fresh evidence is concerned, this falls into two categories. The first category consists of evidence that the Applicant is able to describe and that he relies on to establish that the Complainant was untruthful when she gave her evidence; the second category is evidence of a less certain character that he contends is available in the hands of the prosecution in the form of phone data that should now be produced
57. Article 34(a) of the Court of Appeal (Jersey) Law 1961 provides that "the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-�(a) order the production of any document, exhibit or other thing connected with the proceedings if the production thereof appears to be necessary for the determination of the case."
58. The principles to be applied in relation to any application to admit fresh evidence have been identified in a number of decisions of the Court of Appeal; amongst other cases in Hume v AG [2006] JCA 162, Norris v AG [2014] JCA 87, Motofelea v AG [2014] JCA 236 and Le Lay v AG [2022] JCA195. There are four issues to be considered:
(i) The evidence sought to be adduced should have been unavailable at the trial.
(ii) The evidence must be relevant.
(iii) It must be capable of belief; and
(iv) if the evidence has met the earlier criteria the Court must go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the Appellant's guilt had that evidence been given at the trial.
59. Each case has to be considered on its own facts but in general the reception of fresh evidence before the Court of Appeal is wholly exceptional.
60. We shall consider the items of fresh evidence identified by the Applicant in turn against these criteria.
61. The written report of Benedict Chieffo. Mr Chieffo gave evidence at trial for the defence. The Applicant now contends that his written report should have been placed before the jury. However the report was available to be placed before the jury. The Applicant chose not to apply for this to happen. Although he claims that he was not aware that the jury did not have the report, it is clear from the transcript that he was told that the jury did not have it. It was explained that he would need to ask Mr Chieffo to identify the reports and to ask permission to add it to the bundle. The Applicant chose to proceed without doing so. No doubt the Applicant was acutely aware of the shortcomings of the report because, as he told the Bailiff, the report spoke only in the language of possibility "could" not "was". This is not fresh evidence that passes either the first or fourth stage test. It was available at trial, its substance was explained to the jury, and it would not have made any difference to the outcome of the trial.
62. The evidence of Sarah Felton (a telecommunication expert). This evidence also fails at the first and fourth stage. It was evidence that was available at trial and it does not appear to add anything material to the evidence of Mr Chieffo, which was called at trial.
63. The CCTV footage from Reids Chemists. This evidence shows a post charge confrontation between the Applicant and the Complainant starting at 13.56 on the video timer. There is no audio recording so it is not possible to understand the content of the exchanges shown. The video and its existence were known before trial. It is not clear why it was not available to the Applicant. However it was not itself relevant to the issues before the jury and could not have affected the outcome of the trial. It is clear that the Applicant chose not to deal with the incident in his own evidence.
64. The BWV of PC MacArthur. The BWV was made available to the Amicus. There is no evidence that he refused to allow the Applicant to access it. It therefore fails the stage 1 test. It also fails at stage 4. The issue as to what the police were told was canvassed at trial. The BWV could not conceivably have affected the outcome of the trial.
65. The notes of DC Thomas. These notes were available at trial. They cannot be thought to give rise to any significant material that might have given rise to a reasonable doubt.
66. The Applicant has made a request for the production of phone data of the Complainant. This is said to be "critical evidence" to show when calls and texts were made between the Complainant and the Applicant. There are two difficulties with this request. First, no request was made for the data at trial although the Applicant claims that its relevance was clear once the Complainant had given her evidence in chief. Second, the Applicant has the counterparty data on his own phone. He was therefore free to deploy this material, if he chose to do so, at trial. It is therefore clear that the material was available at trial and would not have affected the jury's verdict. It accordingly passes neither the first nor the last test for admission on appeal.
67. The focus of the appeal has been on whether the verdict was unreasonable or unsupported by evidence. We are unable to conclude that it was. The jury had the opportunity of seeing the Complainant and the Applicant give evidence. They were aware that there were significant issues in connection with the Complainant's description of the timing of the incidents and that she was clearly wrong about some of the surrounding circumstances. In addition, it was clear that her behaviour was not always consistent with what the Applicant argues would be the behaviour of a genuine victim of assault.
68. However we do not consider that the evidence can be subjected to an overly logical scrutiny. It is clear that the Complainant was a vulnerable person. It is also clear that she was giving evidence 2 years after the events. We do not consider that the jury were required to dismiss the Complainant's account because of peripheral inconsistencies or even outright lies as to the surrounding circumstances.
69. It is well known that incidents of violence in a domestic context may impair a person's ability to give a clear and coherent account of the event. Some victims of assault may even contact the aggressor with friendly messages to reduce the risk from them, or because they want to block out the abuse in order to return to a sense of normality. Many do not report the attack to the police. There is nothing in the circumstantial evidence at trial, or now evidenced in the fresh material that causes us any doubt as to the correctness of the verdict of the jury
70. The other procedural issues identified do not appear to us to give rise to any legitimate ground of appeal. It is possible that the Applicant's defence may have been conducted more effectively, had he been represented, however he made the choice to represent himself. The way in which the trial unfolded reflects the tactical choices he made for himself. He cannot, on appeal, complain about the impact of those choices, unless we are satisfied that the Bailiff's conclusions on the contested issues were irrational or otherwise caused injustice so as to deprive the Applicant of a fair trial. We do not consider that the conclusions were irrational or they affected the fairness of the trial. On the contrary the Bailiff permitted the Applicant considerable latitude to raise any points he wanted either by himself or through the Amicus. We do not accept that he was unfairly disadvantaged. For these reasons we refuse leave to appeal and refuse the applications to admit fresh evidence