Bonne Nuit attack conviction stands despite judge's "mistake"

Thursday 21 September 2023

A man who kicked his brother's head "like a football" was guilty of grave and criminal assault in spite of a jury "not being properly directed" at his trial, the Court of Appeal has found.

The Court declined to quash Jake Marly Robertson's conviction after he was was found guilty following an 11-minute confrontation with his brother at Bonne Nuit in July 2021.

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, detailed in a recently published judgment, the Court of Appeal rejected Mr 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 to the alleged grave and criminal assault, and the different defences his client had.

Sir William Bailhache – who was presiding over the appeal with Mr James Wolffe, KC and Mr 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".

"A key problem in this case is the joinder of all four events within the charge in one count, when there were different defences to the different parts of the charge," he said, adding that the Deputy Bailiff's summing up did not give the jury a route to a verdict which would assist them in distinguishing those 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. The difficulties, which we have described, arising from the inclusion of all of the events charged in a single unparticularised single count, did not give rise to any prejudice to the appellant as regards the conduct of the trial."

Concluding the Court's judgment, Sir William added that although a second ground of appeal – relating to the use of force to prevent a person harming themselves – had ultimately been withdrawn, it might in future be necessary for judges "to consider, with the benefit of submissions, the appropriate form of direction, and how the defence should best be communicated to the jury".