A 36-year-old man’s appeal against a sexual assault conviction has been dismissed by the Royal Court, but he still intends to appeal against his five month prison sentence.
Matthew McClean, a visiting semi-professional rugby player from Sussex, had denied the charges las year, but he was convicted of sexual assault and common assault following a trial in September.
Presiding over the appeal hearing yesterday, Guernsey's Bailiff, Richard McMahon, said he was satisfied that the Magistrate’s Court had properly found the touching against the complainant to be of a sexual nature.
McClean will go before the Royal Court and Jurats later this year to appeal his combined prison sentence for both assaults, on the grounds that it is manifestly excessive.
He was granted conditional bail when he lodged his appeal, and that was extended by the Bailiff until his upcoming appearance in the Royal Court. This included a £7,000 security.
McClean did not appeal against his conviction for common assault.
Pictured: The hearing was held in the Royal Court.
The appellant’s Advocate, Clare Tee, submitted three grounds on which to overturn the conviction, with each dismissed by Mr McMahon.
The first was that contradictory evidence was provided by two of the prosecution’s witnesses, that Judge Gary Perry “entered the arena” when questioning a witness, and that Judge Perry made an “adverse comment” about the defendant not providing testimony during the trial.
Advocate Tee argued that testimony from the complainant and another witness for the prosecution was “diametrically opposed” and “irreconcilable”, such that the conviction couldn’t be supported.
The complainant testified that while on the floor, McClean climbed on top of her and dry humped face-to-face.
Another witness said that the dry hump was from behind, with the complainant lying with their back on top of McClean’s front.
Advocate Tee said Judge Perry should’ve resolved the conflict in that evidence or acquitted her client.
Witnesses for the defence said both the complainant and defendant had remained motionless while on the floor.
But the Bailiff said that the second prosecution witness had a clear view of the incident, which was backed up by CCTV footage, while defence witnesses admitted not seeing the entire incident.
Therefore, Judge Perry was permitted to reject the defence’s version of events as evidence existed to result in a conviction.
Pictured: The Bailiff acts as President of the Court of Appeal.
Advocate Tee also suggested that Judge Perry’s questioning of a defence witness to distinguish between claims of ‘funny’ and ‘amusement’ didn’t arise out of previous questioning and were “unnecessary” for clarification purposes.
However, Judge Perry was deemed to have merely been seeking a “legitimate” clarification which did not deviate from the natural flow of questioning, according to the Bailiff.
Mr McMahon also rejected claims of an adverse comment by the Judge, saying the defendant declined to give evidence at trial, and the right of persons to not do so was “confirmed and emphasised” by Judge Perry, which was “uncontroversial”.
Judge Perry also knew from police interview transcripts, not guilty plea, and the defence witnesses that McClean would deny acting in a sexual manner.
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