A MAN jailed for two years and nine months for grave and criminal assault has lost an appeal against his conviction in spite of the fact that the jury was ‘not properly directed’ at his trial last year.
Jake Marly Robertson was found guilty following an 11-minute confrontation with his brother Callum at Bonne Nuit in July 2021, during which one witness said he saw the appellant kick his brother’s head ‘like a football’.
Callum Robertson – who the court heard started the altercation – admitted grave and criminal assault but his brother Jake denied the charge and was committed for trial in September last year when he was unanimously convicted by an assize jury.
At a hearing earlier this year, the Court of Appeal rejected Jake Robertson’s appeal on the grounds that the Deputy Bailiff, Robert MacRae, did not give a fair, balanced and legally accurate summing up. His counsel, Advocate Mark Boothman, argued that the judge failed properly to distinguish a series of stages leading up to the alleged grave and criminal assault, and the different defences his client had.
Sir William Bailhache – who was presiding over the appeal with James Wolffe KC and Paul Matthews – accepted that there were shortcomings in the Deputy Bailiff’s summing up, adding that it had been wrong to conflate the incident into a single count of grave and criminal assault, a decision which ‘should have been revisited in the course of the proceedings’.
Sir William added that the Deputy Bailiff’s summing up did not give the jury a route to a verdict which would assist them in distinguishing these different parts.
‘For this reason, we consider that the defence to the charge was not presented to the jury in sufficiently clear terms and that this involved a mistake of law. But the Deputy Bailiff’s task was unfortunately not made any easier by the failure of the Crown to consider sufficiently carefully the structure of the charge, and the failure of the appellant to object to it,’ Sir William continued.
However, in spite of finding that mistakes were made by both the prosecution and the judge, the Court declined to set aside the guilty verdict.
‘Recognising that it is our own judgment which is critical, we are satisfied in this case that if the jury had been properly directed in the present case, they would have reached the same verdict,’ Sir William said.
He explained that the Court of Appeal found CCTV evidence sufficiently ‘compelling’ that no ‘reasonable jury would conclude that the appellant’s actions could have been justified on the grounds of self-defence’.
Dismissing the appeal, Sir William continued: ‘Furthermore, especially given the victim’s loss of consciousness after the first assault, we do not consider that any reasonable jury would conclude that the appellant was acting in self-defence by dropping his brother on his back on the pier in the second incident.’
