If an attacker has been criminally convicted for assault and the victim sues for financial compensation for injuries caused by the assault, is the judge in the civil trial bound by the findings of the judge in the criminal trial?
In last week’s case of MacKay v. Jhulley 2015 BCSC 1114 the defendant (Mr. Jhulley) hit the plaintiff (Mr. MacKay) over the head with a metal pipe. The significant blow caused the plaintiff a head injury and he continued to suffer headaches, dizziness, fatigue and a constant ringing in his ears. At trial, each party presented a radically different version of the assault – and each claimed for damages from injuries. The defendant had previously been convicted of three criminal offences committed during the subject assault. In awarding the plaintiff $297,000.00 in fair compensation for his injuries (and entirely dismissing the defendant’s claim), Mr. Justice Kent concluded that his liability findings were already decided by the Provincial Court in the criminal trial:
 In this case, Mr. Jhulley was charged with, and ultimately convicted of, three very serious criminal offences carrying with them the prospect of lengthy incarceration. It can hardly be said that these proceedings were too minor to generate a full and robust response.
 Mr. Jhulley also argues that the original criminal proceeding was tainted by the inadequacies of both defence counsel and the interpreter. There is no meaningful evidence on either point and, of course, no appeal was taken on that account.
 In my view, as occurred in McCaffery v. Arguello, 2014 BCSC 70, this is a case where the law requires the findings of the Provincial Court in respect of the criminal charges to have been conclusively established against Mr. Jhulley in the present civil proceeding. Those findings include that:
- Mr. Jhulley uttered threats of death or bodily harm to Mr. MacKay over the phone before driving over to the latter’s house;
- Mr. Jhulley was the aggressor throughout;
- Mr. Jhulley presented himself at the house with a metal pole in his hands and swung at Mr. MacKay several times through the front window before proceeding to the back of the home;
- Mr. Jhulley approached Mr. MacKay and struck him once on the head with a metal pole causing a wound;
- Mr. MacKay defended himself by striking the accused in the right eye area with his fist;
- Mr. Jhulley was not acting in self-defence;
- Mr. MacKay was never the aggressor, and did not have an object in his hands when he approached Mr. Jhulley, rather he was simply defending himself throughout; and
- Mr. MacKay did not carry out any sort of unprovoked assault.
 These findings are completely dispositive of the liability issues in this case, including Mr. Jhulley’s counterclaim for damages for personal injury. I find Mr. Jhulley liable to Mr. MacKay for the tort of assault and battery, and Mr. Jhulley’s counterclaim for personal injuries sustained in the altercation is dismissed.
 I would add that even if I were not bound by the findings in the criminal proceeding, I would nonetheless have made essentially the same findings on the evidence in this case. Mr. Jhulley is an unreliable and incredible witness who gave false testimony on numerous points. At his criminal trial, he admitted striking Mr. MacKay with a metal pole, albeit in claimed self-defence, but in the present trial he testified that he never laid hands on the pole at any time but rather struck Mr. MacKay with a wooden two-by-four. The evidence of the assault at the window, damaging both the curtain and the sill, is overwhelming and Mr. Jhulley’s denial that any such incident occurred is completely false. Similarly, his testimony that Mr. MacKay took a break from assaulting him to recharge himself with a snort of heroin is a complete fabrication and one so ludicrous that it beggars belief.
Authored by Jill Bishop