Jersey Unreported Judgments

Grave and criminal assault - appeal against the conviction before the Youth Court

[2023]JRC131

Royal Court

(Youth Appeal Court)

25 July 2023

Before     :

Sir Timothy Le Cocq, Bailiff, assisted by Mr David McFadzean Mr Matthew Beddoe Mr Martin Delap Members of the Youth Court Panel

 

Advocate A. E. Binnie for GG.

Advocate S. E. A. Dale for HH.

Advocate I. C.  Jones for II

Ms L. B. Hallam, Crown Advocate

judgment

the bailiff:

1.        This is an appeal against the conviction before the Youth Court following a trial on 1 and 2 February 2023 of GG, HH and II for a grave and criminal assault against the Victim on 28 June 2022.

2.        Each of the Appellants, together with the Victim, were pupils at School A at the relevant time.  The Victim was 14 years of age, GG was one month short of her 14^th birthday, HH was 14 years of age and II was also 14 years of age.

3.        On 28 June 2022, shortly after 3 o'clock in the afternoon, the Victim was standing with a friend at the bus station waiting to catch her bus home.  She became aware of the three Appellants and, led by GG, the three crossed the road and walked towards the Victim.

4.        The Appellants' case was that they were doing so in order to ask the Victim why the Victim had been calling a friend of GG a "fat pig".  As the three Appellants approached the Victim, it appears that the Victim's friend walked away in effect leaving the Victim alone.

5.        There was a verbal exchange which was the subject of considerable analysis and questioning before the Youth Court.  There then followed a physical altercation which, it appears, initially took place between GG and the Victim with HH participating subsequently.  It is not suggested that II became physically involved in what took place.  Her part, according to the Prosecution's case, was to film the events and provide verbal encouragement, primarily to GG, with regard to the assault.

6.        It was the Prosecution's case that the physical altercation was started by GG and that the Victim was neither the aggressor nor did anything other than try to defend herself.  At some point, HH had become involved in the altercation and had physically intervened on behalf of GG and against the Victim.

7.        GG's case was, in effect, that while she and her friends had gone along to ask the Victim why she had said abusive things about GG's friend, she had never intended physically to confront her nor did she intend to fight her.  She was, in fact, somewhat scared of a physical confrontation with the Victim.  HH's case was that he had gone along not intending there would be any confrontation in a physical sense but merely to hear what the Victim was going to say about the name-calling.  He had not thought further ahead than that.  He was aware that GG did not want to get into trouble because she was already in trouble for a physical assault and was trying to keep out of trouble going forward.  When the fight had started - which he said was started by the Victim as the aggressor - he had intervened to seek to pull the Victim off GG.

8.        II, for her part, said that she did not really know why she was filming but there was no question that she had encouraged or intended to encourage GG in any aggression.  She had not.

9.        There as only one independent witness who was driving his private vehicle up the road at that time.  The vehicle was in effect in a traffic jam and was stationary when he saw the incident in question.  His recollection is that there were a number of girls who had one girl pinned to the ground and were striking her head into the ground behind them.  He exited his vehicle and told them to stop doing that.  They then left the scene leaving the Victim getting to her feet.  The Victim's injuries were to her face and nose in particular and the Witness asked if she was alright and decided to take her back to school which he then did.  In the course of the journey back to school his evidence was that he had wound down the window as his vehicle went past GG, HH and II and said that they were in a lot of trouble.  At all times on the journey back the Victim, who was in tears, had her hands to her face.

10.      As a result of that incident, the police were called.  It is part of the factual background to the case that GG's mother, tried to telephone Police Headquarters in order to make a complaint on GG's behalf but was not able to make contact.

11.      The Youth Court heard from the Victim, the Witness and the officer in the case for the Prosecution and, for the Defence, heard from GG and HH.  II elected not to give evidence.  There were written admissions and there were agreed statements of the applicable law before the Court.  There was, of course, also the video footage that had been taken by II.  This was in two segments.  The first segment shows some elements of the initial exchange between GG and the Victim although not their faces.  That recording ended automatically because of the feature in Snapchat that it only records for a minute at a time and, shortly thereafter, II began to film again this time showing the physical altercation after it had started.

12.      The immediate start of the physical altercation is not, however, shown as that clearly occurred between the end of one segment of the video evidence and the beginning of the second.  However, a feature at the beginning of the second segment is that the Victim's spectacles were on the ground and something must have happened to remove them from her face.

13.      The Victim sustained unpleasant and painful injuries.  It is possible that her nose was broken and the examining doctor expressed his view that it was likely that it was.  That could not be certain, however, as no x-rays were taken but an examination of the nose suggested to the physician who produced a report for the Court that there was in fact a fracture.

14.      Prior to the trial, the Magistrate had heard applications to admit bad character evidence relating to GG and indeed relating to the Victim.  She admitted the evidence relating to GG which referred to a conviction for a grave and criminal assault on another girl which, as disclosed in the admissions placed before the Court, had some similar features to the instant case.  The Magistrate refused the application to adduce bad character evidence relating to the Victim.  These comprised entries in school records suggesting that the Victim was implicated in a number of violent incidents.  The Magistrate refused this evidence on the basis that it was not clear whether those incidents had been caused by the Victim or what the circumstances were.

15.      The Magistrate did not give her reasons for these rulings prior to the hearing before the Court although did give her reasons in a written judgment that followed the convictions.  This procedural position attracted some comment, particularly on the part of II's counsel, during the course of the appeal.  He argued that the Magistrate should have given reasons for the refusal of the bad character evidence for the Victim prior to the trial so that counsel would have known what was permitted and why.  When an issue relating to the Victim's prior behaviour came up in evidence during the trial, counsel were refused the ability to continue to question her about it.

16.      We pause at this point to say that we do not think it is incumbent upon a judge giving a procedural direction relating to the admissibility of evidence to give full written reasons prior to the trial.  In some cases, there is the opportunity to do so and it may be that that would be useful on many occasions.  However, it is often the case that issues may be dealt with during the course of the trial where it is simply impractical for a judge to give full reasons and in any event even if the hearing took place beforehand, there is no reason why a judge should give full reasons for any order, in our view, prior to trial.  We do not think that the fact that the Magistrate did not give reasons for the ruling that she made created a procedural unfairness or was improper.  If, during the course of the trial, circumstances have changed by reason of any evidence that had been given, then it would have been open to defence counsel to make a renewed application in the light of the further evidence which could have been considered on its merits.  That did not happen in this case.  In our view it would, in any event, have been open to the Magistrate to refuse the line of questioning, as indeed she did.

17.      We have the benefit of a full transcript of what took place during the course of the trial but of course we are not in as good a position as was the trial Court to assess the reliability of any of the witnesses or their demeanour or the quality of the evidence that they gave.  Furthermore, although the transcript is full as to the evidence, there appears to be a section missing - perhaps because the recording was not on at the time - which covers the beginning of the Magistrate's ex tempore judgment in which she communicated the findings of guilt.  Shortly after the appeal was notified, the Magistrate issued a written judgment dealing with the evidentiary decisions that she had taken, referred to above, and giving more detail as to the reasons that the Court found the case proved against the three Appellants.  That second written judgment has been the subject of comment before us.  Clearly, in certain respects, particularly relating to II, there is an inconsistency between what is said in the Court's ex tempore judgment and what is said in the written judgment.

18.      In the ex tempore judgment given by the Court on 2 February 2023, in addressing II, the Magistrate said this:

"...You were filming, but we would have to be sure that filming was part of encouragement, and we came to the conclusion that we were not sure that GG knew about the filming and so we have looked at your voluntary presence there and what you said and did."

19.      In the written judgment which was dated 20 April 2023, in dealing with II's position, the judgment reads:

"...The Court was satisfied that GG knew that II was filming."

20.      Plainly both of these statements cannot be correct.  Either the Youth Court was sure or it was not.  The discrepancy is not in any sense addressed in the written judgment and this Court is not able to say whether or not the Magistrate mis-spoke in delivering the original ex tempore judgment or there had been a change of view.  The Crown is able to offer no explanation for the discrepancy and we think that we must take what is said at face value and therefore not assume a mis-speaking and should disregard the written judgment which is at odds with the more immediate ex tempore comments.  Accordingly, we proceed on the basis that the Court below was not sure that GG was aware of the fact that II was filming.

21.      This is significant but was not the only basis on which the Court below found II guilty and we shall come on to consider that shortly.

22.      The arguments put forward on appeal went into considerable detail with regard to the evidence and we have not, in this judgment, set out every aspect of the arguments that were put to us or the detail of the evidence that was canvassed in submissions or in the written arguments.  We have nonetheless considered them and in doing so we are grateful to counsel for the thoroughness of the written submissions before us.  We have, applying the legal principles set out below, looked at the matter in the round and the sufficiency of the evidence and the conclusions drawn by the Youth Court.

The law

23.      The test on appeal from the Youth Court has been set out in a number of previous authorities and most recently in McAdam v AG [2022] JRC 280 in which the court at paragraph 20 of the judgment said this:

"20.    The relevant test is that set out in Graham v AG [2013] JRC 014, which is considered the appeal provisions in the Magistrate's Court (Jersey) Law 1949 which has been essentially replicated in the Criminal Procedure (Jersey) Law 2018.  The key passage is an extract from the decision in Rushton v AG (Royal Court October 16th 1989 Unreported) where the Court said:

"The Court of course has on many occasions said that its duty in looking at an appeal on conviction from the Magistrate below is to examine the transcripts to see if there is evidence on which the Magistrate concerned could properly have come to the decision he did.  If there was that evidence, then even though the Court might not necessarily come to the same decision, the Court does not likely interfere with it.  The Court has to be satisfied that there was insufficient evidence [for] the Magistrate to have come to the decision he did, or that he drew the wrong conclusion and inferences from the evidence before him."

24.      It seems to us that this is also the test that should apply for any appeal from the Youth Court.  There is an added dimension to such an appeal, however, which is that the Youth Court of course comprises a Panel presided over by a judge but assisted by two members of the Panel.  Therefore, it seems to us that the findings of fact on the evidence, provided there was sufficient evidence to make those findings, should be given substantial weight and only be interfered with if the Youth Court has fallen into error.

25.      Where a question of the exercise of a discretion is being challenged, the Court of Appeal in U v AG [2012] JCA 085, the Court, at paragraph 31, said this:

"31.    It is axiomatic that this Court would be loath to interfere with the discretion of any trial judge. The circumstances in which an appellate court in a criminal trial might be constrained to overturn the exercise by a trial judge of his discretion to admit evidence was considered by the Court of Appeal in R v. O'Leary (1988) 87 Cr. App. R. 387. In rejecting the submission that the Court should overrule the trial judge, May LJ said at p. 391: "The judge expressed his decision not to reject the evidence applying the proper test laid down by statute.  In our judgment, although we have a certain hesitation on the point, we do not think it can be said that the decision was perverse in the legal sense, a decision to which no reasonable judge could have come." This test was followed in R v. Quinn (1995) 1 Cr. App. R. 480 per Lord Taylor LCJ at p. 489 and in R v. Dures (1997) 2 Cr. App. R. 247 at p. 261-267 per Rose LJ."

26.      In other words, on the matter of a discretion, we should only interfere if we consider that it was a decision to which no reasonable judge could have come.

27.      A number of legal issues arose in connection with the trial below but, as we have said, the Youth Court there had before it agreed statements of the legal position and it is not suggested in this appeal that the Court misdirected itself as to the law in any material particular.  Accordingly, we do not consider that aspect further.

GG's appeal

28.      It is the verdict in connection with the position of GG that is not fully transcribed.  We have further benefit of the written judgment which is expressed in rather fuller terms than the ex tempore remarks at the end of the trial.

29.      In the ex tempore remarks, however, the Court characterised the interaction as an assault by GG in the following way:

"The assault, particularly down by the pillar, was a sustained assault by you.  At this stage you had hold of her hair.  At some point she does not have hold of you at all.  We see you pushing her head up and down against the ground and we see your right hand punching towards her head with the phone and contact was made.  This is a serious assault and a sustained assault from the first moment until the last.  It is a grave and criminal assault in our view."

30.      The Court then went on to deal with the question of self-defence which it rejected.  It said:

"We are sure beyond a reasonable doubt that you did not believe it was necessary to use force to defend yourself.  Therefore, we do not really need to go on to consider whether such force was reasonable in the circumstances, but we would say (even if we were wrong about the first part of the test) that the degree of force used was disproportionate and not reasonable to any threat you might have felt you faced, but as we say we do not believe you acted in self-defence."

31.      It is clear from the facts that the Victim was in effect by herself when the three Appellants approached her.  She had not sought out any confrontation or interaction with them at all.  They elected to cross the road and at the very least their purpose at that time was to challenge her about an alleged insult.  In the written judgment the Court characterised in more detail the situation that gave rise to the interaction and the actions of GG.  It said this:

"She confronted the Victim, coming down the hill and crossed the road to do so.  GG said that she could hit the Victim (not that she would hit her), and that she had a grievance against the Victim (the alleged comments by the Victim about GG's friend, [redacted]).  The Victim was open-handed, was not aggressive and was questioning why GG was there.  The Victim had her back to a granite wall and was alone, whereas GG had two friends with her.  The Victim's situation was not one in which a person would be likely to start a fight.  The Victim had no apparent motive or willingness to assault GG."

32.      In the written judgment, the Court observed the positioning of the Victim's glasses which were on the floor and sets out the inference that they were there because of a blow perpetrated on the Victim.  The Court said this:

"The position of the glasses was a significant distance away on the ground to the Victim's right, and the Victim's move from open-handed and questioning at the end of the first video, to having hold of GG's jumper at the beginning of the second, is consistent with GG having struck the Victim to the left side of her face.  The Court accepted the Victim's evidence that GG struck the first blow and 'punched' her glasses off.  The Court was satisfied that the Victim reacted by grabbing GG's jumper and holding her to prevent a further strike."

33.      The Court went on to express the view that even if the Victim had acted first, she was simply holding GG's jumper and was not aggressive and was not trying to punch or kick her.  Once the Victim had fallen to the ground as a result of HH's intervention, GG was on top of her, had hold of her hair and was banging her head on the ground as mentioned earlier.

34.      The Court reflected the fact that the Witness's evidence, which in some respects was more comprehensive over a narrower period than the video discloses, was to the effect that there were "multiple blows".

35.      The essence of GG's appeal is in part that the Court below was wrong to reject the defence application to adduce evidence of non-defendant bad character and the Magistrate was wrong not to provide reasons as to the rejection of that application.  GG further argues that the finding of guilt was unreasonable and was not supported by the evidence and that the Court made incorrect findings of fact and there was insufficient evidence to permit the Court to be sure that GG was not acting in self-defence.  Lastly, it is argued that the Court did not provide sufficient reasoning as to why it found GG and HH not to be credible witnesses.

36.      In the written judgment of 20 April 2023, as mentioned above, the Magistrate had explained that the Court rejected that application because the information in the reports held on the school records did not provide evidence of misconduct, lacked detail, and did not result in any investigations or show the results of those investigations and they were not clearly accurate or reliable.  There was no confirmation that the Victim was the aggressor in those incidents.

37.      In response, in essence, GG argues that the records whilst not particularly detailed made it clear that the Victim had been involved in physical fights with other students on a number of previous occasions.

38.      It is argued that these incidents and the proximity of them to the instant case was important explanatory evidence without which the Court could not have understood GG's fear of the Victim and therefore whether it was necessary for GG to act in self-defence.  In the written reasons for rejection, the Court set out, in our view appropriately, the nature of the Defence's application to admit the Victim's bad character and from paragraph 7.3 to 7.8 inclusive, set out the Magistrate's reasons in the following terms:

"Decision

7.3      The Court rejected the application to admit the school reports as evidence of the Victim's bad character.  The Court considered that the information in the reports did not provide evidence of misconduct by the Victim.  The reports lacked detail; they were notes for teachers, not statements designed to show who was responsible for the altercations in which the Victim was involved; the notes did not show investigations, nor the results of investigations; comments were ambiguous; in one case the notes for one date were the same as notes for another date which raised the question of accuracy and reliability.

7.4      These notes did not provide evidence that the Victim was the aggressor in these incidents as claimed by the Defence.

Even if the reports had shown evidence of misconduct, the behaviour did not meet the tests in Article 82J (1)(a) and (b).

Important Explanatory Evidence

7.5      The Defendant would be able to put her case to the Court and the Court could understand her case, without reference to the school reports.

In her DCS, GG stated that one of the reasons she believed she had to use force against the Victim was that she was frightened of the Victim as the Victim had had boxing lessons and GG knew that the Victim was strong.

7.6      GG does not assert that she was frightened of the Victim because of the incidents mentioned in the school reports.  The absence of the reports would not affect GG's ability to put her case, nor the Court's ability to understand it.

Substantial Probative Value

7.7      There is no evidence in the notes that the Victim was the aggressor, nor is it possible to determine how similar the incidents might have been to the incident subject of the charge.  Due to the limitations of the reports, they are not of substantial probative value in determining whether GG was acting in self-defence.

Credibility

7.8      For the same reasons, the reports would not be reasonably capable of assisting the Court to reach a view whether the Victim's evidence was or was not worthy of belief (AG v PMB [2021] JRC 335)."

39.      We believe that it was open to the Magistrate to conclude as she did and to disallow the bad character evidence relating to the Victim.

40.      Many of the submissions made to us were derived from the two video segments which the Court viewed on more than one occasion both in open court and after retiring.  Similarly, counsel sought to undermine the Victim's evidence and support that of GG and HH and II by an analysis of what each said.

41.      It is clear, and indeed entirely familiar to every judge who presides over a criminal matter contested on its facts, that there are from time to time inconsistencies in the evidence.  Those inconsistencies may arise as between what a witness says in evidence and in a previous statement or indeed as between different witnesses to the event.  People's memories sometimes fade or indeed sometimes improve with the passage of time and it is unlikely that every witness as to fact will recall things in exactly the same way.

42.      It is for the Youth Court to form the best assessment that it can of the evidence and provided it is satisfied to the criminal standard, and any inconsistencies in the evidence do not in the Court's mind undermine materially the conclusions that it could otherwise draw, then on the basis that there is evidence that can justify the trial Court's conclusions it is not, applying the appropriate test above, for this Court to interfere with those conclusions other than in exceptional circumstances.

43.      We have had as much opportunity to review the video evidence as did the Court below but we have not heard the witnesses give their evidence, the manner in which they gave it, or the manner in which they withstood questions and cross-examination.  It was open to the Court below to find that GG and HH were not credible witnesses and there was sufficient evidence in our judgment for the Court to make a finding as to guilt where GG was concerned.

44.      GG, HH and II together crossed the road to confront in some manner the Victim about a perceived slight.  GG was clearly the person who most instigated the interaction and was motivated to confront the Victim and she and her friends effectively did so when the Victim was alone and without the support of her friends.  They stood closely to her and it is clear from the video evidence that something happened to place the Victim's glasses on the ground.  the Victim explained that they had been struck from her face by GG.  The Youth Court was entitled, in our view, to draw that inference and there is nothing that we have seen in the video evidence that is inconsistent with it.  It was open to the Court to consider GG the aggressor, the instigator of the violence, and its continued perpetrator even after the Victim had gone to the ground as a result of HH's intervention.

45.      We are satisfied that there was sufficient evidence on which the Court could properly convict GG of grave and criminal assault and we do not interfere with that conviction.

HH's appeal

46.      With regard to HH, in the ex tempore judgment the Court expressed the view that it did not find HH to be a very credible witness and characterised his main involvement "amongst other actions, was pulling at the Victim's ankle to bring her to the ground.  There was no threat to HH at that time at all.  He said in evidence that this was to prevent another attack on him by the Victim.  We do not see an attack on him by the Victim.  She held him away.  At the same time, she was actually holding GG off as GG was trying to kick her".

47.      The Court then went on to say what it saw in the evidence:

"HH actually walked away and then came back and grabbed the Victim's ankle with both hands."

48.      The Court made the following findings:

"You do nothing to stop what was becoming quite horrific violence, and we find that you deliberately assisted GG, your close friend, to assault the Victim.  We find beyond a reasonable doubt that you did not believe it was necessary to use force to protect yourself or others, and in fact you deliberately joined in that assault.  We find you wanted to help GG assault the Victim and ensure that GG won this fight.  You deliberately did an act to that end by pulling the Victim's leg away from her so that she would fall so that GG could further assault her."

49.      In the written judgment, the Court elaborated by reference to what it heard in the exchanges between the individuals concerned.  At paragraph 12.14 of the written judgment the Court said:

"The Court was sure that HH did not believe it was necessary to use force to defend GG, or even to protect himself.  On the contrary, he deliberately joined in the assault to assist GG in her assault on the Victim."

50.      HH appeals on a number of difference bases but on the over-arching argument that the decision of the Youth Court was unreasonable, based on incorrect findings of fact or unsupported by the evidence.

51.      It is also argued that the Youth Court gave insufficient weight to HH's good character.

52.      It is argued for HH that the Magistrate, in her ex tempore judgment, made reference to the difference between HH's account in his Defence Case Statement and what he said in Court.  The Magistrate went on to say:

"We do not think that the difference between the Defence Case Statement and what was said in Court is significant.  We are not drawing inferences from that."

53.      It is argued that although the Magistrate said in the ex tempore judgment that the difference was not significant as it had been mentioned it clearly had played on the thinking of the Youth Court.  We do not accept this argument.  The Court needed to give consideration to the question of self-defence and it was therefore reasonable to mention that in the ex tempore judgment.  As set out above in the ex tempore judgment and written judgment, the Court expressed itself satisfied that HH was not acting in self-defence.  The Court also considered the alternate possibility that HH was trying to stop the violence.  Again, in those same sections of the ex tempore and written judgment, they dealt with that.

54.      We do not think that this argument undermines the conclusions of the Youth Court.  It is argued for HH that the Defence Case Statement was consistent with the evidence that HH in fact gave.  We do not think that the Court's characterisation of his evidence in the ex tempore judgment has there been "some difference" between the Defence Case Statement and what he said in Court was significant.  The Court quite clearly, as it expressly said, did not draw an inferences from the distinction.

55.      An analysis of HH's knowledge of the Victim's character and his awareness of the recording being taken by II is advanced to suggest that the Youth Court could not have formed a proper view as to HH's understanding when he was involved in the altercation nor as to his credibility or, indeed, the credibility of the Victim as a witness.  It is accepted in HH's skeleton argument that II and HH were close to each other but it was argued that HH was in front of II and was not looking at the phone and accordingly the Court below must have erred in reaching the conclusion that HH knew the incident was being filmed.  Indeed, because the Victim had said in evidence that she had seen that they were filming and that both HH and II were looking at the camera must, because on the positioning of HH and II, showing that to be wrong, have undermined the Victim's credibility.

56.      We observe that there was a brief gap between the end of the first recording and the beginning of the second.  We do not know how the camera was being used but it was open to the Court to accept the evidence of the Victim who the Court found to be credible.

57.      HH points to further apparent inconsistencies between what the Victim said in her statement and in the evidence between them.  We repeat that inconsistencies are not in any sense untypical and it was open to the Youth Court to make a finding on the reliability of the evidence given before it as indeed it did.  The detailed argument about what HH said and did was employed in the skeleton argument advanced on his behalf and in submissions.

58.      The Youth Court did not, however, take a view of the evidence that it was not entitled to take.  It is clear that HH's intervention as opposed to seeking to get between the girls was to grab the Victim's leg and cause her to fall.

59.      Again, applying the appropriate test we are satisfied that there was enough evidence on which the Court below could reasonably conclude that HH was there to assist GG.  He may not have instigated the violence but there was sufficient evidence for the Court to find that he assisted GG, his close friend, by pulling the Victim's legs so that she would fall to the ground.  There is no suggestion that he thereafter sought to pull GG from her or indeed act to separate them in any way.

60.      In the circumstances, we do not think that there is any basis to overturn the Youth Court's findings and we dismiss HH's appeal against conviction.

Appeal of II

61.      In the ex tempore judgment, the Court characterised the position as follows:

"II, you were in a group of three confronting the Victim.  You were voluntarily present.  We do not think at that stage the group had any intention of assault.  You were filming, but we would not have been sure the filming was part of encouragement, and we came to the conclusion that we were not sure that GG knew about the filming and so we have looked at your voluntary presence there and what you said and did.  The only reason anyone went there was that you told GG about the comments that the Victim is said to have made.  The others say they did not know where the Victim was, so we believe you must have told GG where to go.  You all three went together and you went to confront the Victim.  That is admitted in your interview.  You were all close friends and you were all physically close at the time, and we are sure that GG knew of your presence from the beginning.  You went at first to confront, but then that became violent and you decided to stay.  You were filming at the beginning and your film ran out because it was Snapchat but you decided to continue to film.  You decided to stay, we believe that GG knew you were staying, and that you were part of a supportive group.  If you had not supported the assault, you could have left, there would have been nothing to stop you, but we think you did the contrary.  You were voluntarily present and part of a supportive group that GG knew about."

62.      The Court then went on to refer to vocal encouragement given by II and said this:

"We also find you gave vocal encouragement.  You said 'I must, I must.  Keep her down'.  We believe that 'I must, I must' referred to that you must keep filming, but 'keep her down' is encouragement to GG to continue the assault.  So even without the filming we find that there was a plan to go together as a group to confront.  It was deliberate presence, it was deliberate remaining, there was verbal encouragement...and that GG knew of the continued presence and the vocal encouragement."

63.      In the written judgment although it contains the contradiction referred to at paragraphs 18 to 20 above, the Court went on to consider the position even if GG had been unaware of the filming by II.

64.      At paragraph 12.19 of the written judgment it says:

"Even if GG had been unaware of the filming, II gave vocal encouragement to her which the Court was sure GG heard and was intended to encourage GG in her assault on the Victim."

65.      The law on secondary liability was subject to an agreed statement which is in the following terms:

"Secondary Liability

2.) A Defendant's liability for a criminal offence committed by the principal is to be based on ordinary principals of secondary liability.

3.) A Defendant is liable as an accessory (and not as a principal) if he/she assists or encourages or procures another person, the principal, to commit the offence and he/she does not, by his/her own conduct, perform the actus reus.

4.) The offence occurs where and when the principal offence occurs.

5.) There is no requirement that the Defendant and principal shared a common purpose or intent.

6.) It is immaterial that the Defendant joined in the offence without any prior agreement.

7.) A Defendant's liability for assisting an offence will depend on proof that the offence was committed and that:

a.) The Defendant's conduct assisted the principal in the commission of the offence.

b.) The Defendant intended that his/her conduct would assist the principal, although there need not be a meeting of minds between them.

c.) The Defendant intended that his/her act would assist the principal in the commission of either;

i.) a type of crime, without knowing its precise details or

ii.) one of a limited range of crimes that were within the Defendant's contemplation.

d.) The Defendant had not withdrawn at the time of the principal's offence:

8.) A Defendant's liability for encouraging an offence will depend on proof that the offence was committed, and that;

a.) The Defendant's conduct amounting to encouragement came to the attention of the principal; but note it does not matter that the principal would have committed the offence anyway since there is no requirement that the Defendant's conduct has caused the principal's conduct. Non accidental presence may suffice if the Defendant's presence did encourage the principal and the Defendant intended it to do so.

b.) The Defendant intended, by his/her conduct to encourage the principal. The prosecution do not need to establish that the Defendant desired that the offence be committed. The principal must have been aware that he/she had the Defendant's encouragement or approval.

c.) The Defendant knew or if the act is preparatory to the principal's offence, intended the essential elements of the principal's crime, albeit not of the precise crime or the details of its commission.

d.) The Defendant had not withdrawn at the time of the offence.

9.) The Defendant's conduct in assisting, encouraging or causing the principal to commit the crime may take different forms. It will usually be in the form of words and/or conduct. Merely associating with the principal or being present at the scene of the principal's crime will not be enough; but if the Defendant intended by associating with the principal/being present at the scene to assist/encourage/cause the principal to commit the crime e.g. by contributing to the force of numbers in a hostile confrontation, or letting the principal know that the Defendant was there to provide back-up if needed, then the Defendant would be guilty.

10.) The prosecution do not have to prove that what the Defendant actually did influenced the principal's conduct or the outcome.

11.) The prosecution do not have to prove that there was any agreement between the Defendant and principal that the principal should commit the offence concerned."

66.      It is argued that the Youth Court accepted that when II was first there, she had not formed any intention to be party to any assault.  The whole incident lasted no more than a matter of seconds and any intention on II's part must accordingly have been formulated very quickly indeed.  The Court have expressly found that whilst II was filming, the Court could not have been sure that the filming was part of the encouragement and concluded that they were not sure that GG knew about the filming.  The Court's finding of a belief that II must have told GG where to go to find the Victim was pure speculation, it is argued.  II did not give evidence and HH and GG merely said that they did not know where the Victim was.  The Court accordingly inferred that it must have been II that told GG and HH of the Victim's whereabouts.  That, it is argued, is purely speculative and there were a number of possible explanations.

67.      There is reference to II's interview.  There were certain parts of the event that II clearly accepted she was involved in, including that she was laughing when the Victim was on the ground and she appeared to confirm that she said "keep her down" and that she was laughing at the end of the recording.  She did not know, from her interview, why she had said "keep her down".

68.      The interview was criticised by counsel for II and, having reviewed it again, we accept that certain parts of it were perhaps less than satisfactory.  We accept that it is not clear from the interview that II had told GG and HH where to find the Victim.  Having asked what the relationship was between II and the Victim and having established that they were not friends, the officer conducting the interview then asked: "...so you saw her as you are walking up [the road] with HH and GG and you decided to confront her about these comments that she said.  Is that right?" to which II replied "yeah".

69.      We do not think from that extract, and we have noted no other, that that was a clear acceptance on the part of II that it was she who had seen where the Victim was.  The "you" referred to in the exchange may have been an acceptance that the collective group had seen where the Victim was and not that II had done so.

70.      It is argued that the interview was a short barrage of leading questions and that it was not appropriate to interview a young person in that way.

71.      We note, however, that II was supported in the interview by her mother and we think that it is reasonable in the light of the exchange referred to above for the Youth Court to have concluded that II was part of the group that had decided to go and confront the Victim.

72.      It is submitted on II's behalf that whilst II was there voluntarily, the evidence suggests that her purpose was to record the incident and, as put in the skeleton argument:

"If it is accepted that the filming plays no part in the establishment of criminal liability then it follows that even the Court accepts that part of II's intention was to film the incident and not relevant to criminal liability".

73.      It was accepted that the comment "keep her down" could amount to encouragement but the point is made that the Youth Court, acting reasonably, could not be sure that it was in fact encouragement.  It could simply be an exhortation to keep the Victim still so that the fight could not continue.

74.      Further it is argued that there is no evidence that GG knew of the continued presence of II or of the vocal encouragement for her to commit a crime.

75.      Having viewed the recordings on a number of occasions and accepting that II was there voluntarily, said the things that she was suggested to have said and laughed at some point, the evidence does not, in our judgment, fully support any finding, for example, that II assisted in the offence.

76.      It is not, however, clear to us from the evidence that II's conduct came to the attention of GG nor that she intended to encourage violence towards the Victim.  Merely associating with the group or being present at the scene of the crime is not sufficient to establish liability and it is not clear to us that the Youth Court could have been satisfied beyond all reasonable doubt that the actions of II as revealed from the recordings and other evidence amounted to encouragement in fact or that GG was necessarily aware of them.

77.      In the circumstances, we do not think II's conviction is safe and we allow II's appeal.

General remarks

78.      We have accordingly rejected two of the appeals in this case and the convictions of GG and HH stand on the basis set out by the Court below.  The sanctions imposed by the Youth Court and suspended during the course of the appeal will of course now apply to them and will take effect from the date of the handing down of this judgment.  As we have said, we have allowed II's appeal and accordingly her sentence falls away.

Authorities

McAdam v AG [2022] JRC 280. 

U v AG [2012] JCA 085.