"It wasn't me"

Wednesday 05 June 2019

A man has been found not guilty of assault after he suggested in court that the complainant may have confused him with his identical twin brother.

Troy Brian Bourgaize, 19, was accused of head butting a man he had known at primary school near to Fusion nightclub in December.

On the night in question, in the early hours of 9 December 2018, the court heard that CCTV had captured both the complainant and the defendant in the area of Fusion Nightclub where the offence allegedly took place. 

Both the complainant and the defendant appeared in the Magistrate's Court yesterday to give evidence for and against Mr Bourgaize' not guilty plea. Advocate Sam Maindonald acting in his defence said the case presented on Mr Bourgaize' behalf was one of mistaken identity. 

"The Crown Advocate bears the burden of proof, it is not for my client to prove his innocence. My client's defence is that this was simply not him, he did not do it," she said. 

The complainant was cross examined in court by both the prosecuting lawyer and Advocate Maindonald in order to give his version of events. The court heard that the man - who was in the school year above the defendant at primary school - but had no links with him otherwise, had consumed lager at home from 18:00 and 13 vodka mixers throughout the night in Town.

The man said he had noticed Mr Bourgaize in Fusion nightclub and as he was leaving at around 01:30 the man accosted him in the doorway of the club before asking him to go around the corner to talk. After a ten minute discussion while standing in Le Truchot, which the complainant said he could not remember the contents of, he said he remembered looking down towards the taxi rank at a friend. When he looked back towards the man he remembered to be Mr Bourgaize he said he saw him draw his head back and it connected with the left-hand side of his face. 

Questioned by the Defence about the defendant's identical twin brother - who was also in Fusion that evening according to Mr Bourgaize' testimony - he said he could tell the two apart but could not point to any distinguishing features to confirm that 

"I can just tell them apart, I've known them for years" he said. 

Pictured: Le Truchot, where the offences alledgedly took place. 

Mr Bourgaize was seen by Guernsey Police dealing with a separate matter at around 02:00 in the same area where the offence allegedly took place with chipped tooth, bleeding from the mouth and a black left eye. He reportedly said "what the f***k are you looking at?" to the Police Officer who asked if he wanted to make a complaint to which he said no because it was the result of an "accident". 

"I got angry towards them, I was a bit frustrated. I had just been assaulted and I went down to the Police, they were right behind me when it happened and they didn't do anything," he said. 

He said there was a commotion outside the "back doors" of Fusion - up the road from Petit Bistro - and he had tried to split it up when the friend he was holding back in the fight accidentally elbowed him in the face. He was later caught on CCTV outside Fusion again at around 02:25 with the black eye clearly visible. There was no CCTV shown from either alleged incident. 

The Crown Advocate rejected Mr Bourgaize's version of events, stating that because of Mr Bourgaize's considerable height in comparison to the complainant, the black eye he sustained could "easily" have come from a head butt to someone shorter than him, rather than what he claimed in court, an elbow to the face.  

"You made that up didn't you, you had those injuries because you assaulted [the complainant]," he said. 

The court heard that the complainant attended hospital either one or two days after the incident but was found not to have sustained any serious fractures. On 11 December he made the complaint against Mr Bourgaize.

In his testimony Mr Bourgaize said he had seen his identical twin brother out that evening in Fusion. When questioned by Police he said he did not know why the complainant had identified him.

"I don't know why he's saying that. Maybe he got me confused with someone else. Maybe he's got a problem with me," he said. 

Both men testified that they did not have any reason to disagree with one another. Mr Bourgaize also said he did not know of any reason why his twin brother would have a disagreement with the complainant. 

Advocate Maindonald argued that when the complainant was asked about any distinguishing features between the twins the fact he had sustained a black eye should have been given in evidence. 

"That would have been the perfect time for the complainant to say he had an eye injury," she said. 

In his summation Judge Perry said there was not enough evidence from the Crown Advocate to prove beyond reasonable doubt that Mr Bourgaize was the man who allegedly head butted the complainant nor to say that the twin brother could not have been the man who delivered the assault. 

"The evidence needs to be clear. There is some evidence that this was the defendant but the man who gave the evidence had had 13-14 drinks and couldn't give evidence to the court as to how he knows it was the defendant. 

"With a lack of evidence to establish that the twin brother was not in the area it does not reach the standard that needs to be raised in this court," he said. 

Pictured top: Guernsey's court building.