The Crown on Friday defended a Magistrate?s decision to find the Bromby brothers guilty of assaulting and threatening their neighbour in May, 2004.

The brothers, Peter Frederick Bromby, Jr. and John Mark (Bo) Bromby, were charged and found guilty of assaulting and threatening Henry Talbot during a property dispute. They received an absolute discharge, which means they were not fined and it will not go on their record. Nevertheless, the brothers decided to appeal the decision because they maintain their innocence.

The property dispute in question took place on May 16, 2004, when the brothers discovered that Mr. Talbot was bulldozing natural rock formations on the Gilbert?s Bay Beach in Somerset. They agreed that they were angry when they discovered their neighbour was using the boulders to block the Bromby family?s access to the beach as well as lower the high-tide watermark, effectively increasing his property. Mr. Talbot owns the majority of the Gilbert?s Bay Beach above the high-tide mark.

The brothers said they called Police before they went to confront Mr. Talbot and were attempting to protect the access rights of all Bermudians to the beach. They denied every touching him or threatening him.

In May, 2005 Magistrate Khamisi Tokunbo said he was satisfied that the Bromby brothers did not approach Mr. Talbot in a spirit of peace and cornered him and threatened him. He said the Bromby brothers could have attempted a lawful citizens? arrest, but instead resorted to a ?vigilante-style justice?.

?I do not accept that Talbot?s actions provoked the assault which followed,? he said.

On Thursday defence lawyer Richard Horseman said that the issue of provocation was not properly dealt with in the initial trial and that the brothers were attempting to stop Mr. Talbot from breaking the law when they went to speak with him. On Friday, Crown counsel Oonagh Vaucrosson said the Magistrate had taken their defence into account but rejected it.

She also disputed that the judge failed to make a good character judgment in favour of the defendants. No record of such a judgment was recorded in Mr. Tokunbo?s notes.

Mr. Horseman argued that the Magistrate had failed to take into account two defence witnesses, who said they never saw the Bromby brothers assault or threaten Mr. Talbot, or the fact that one of the Crown?s two witnesses was unable to identify which brother assaulted Mr. Talbot.

During the trial Mr. Talbot?s employee, Earl Waldron, who has a conviction for dishonesty, said that he saw Peter Bromby assault Mr. Talbot but was unable to say which of the brothers was Peter.

On Friday Ms Vaucrosson said the identification issue was ?of little consequence? because he was a distance away and unable to see exactly who was assaulting his employer. She also said that the Magistrate took all witness accounts into consideration despite there being no note of it.

Another issue raised by Mr. Horseman was that no where in the judgment does it mention which brother is accused of saying or doing what. Mr. Talbot said he was hit, poked and threatened numerous times. Mr. Tokunbo also labelled the defendants? actions ?excessive?. During Ms Vaucrosson?s submissions, Puisne judge Geoffrey Bell said: ?The difficulty is with the learned Magistrate?s comments about the actions being excessive. What is the Magistrate referring to? He hasn?t made findings and facts in relation to what the appellants have done.?

Ms Vaucrosson countered by saying it was not necessary to lay out what actions the brothers were being found guilty of because Mr. Talbot had said both brothers assaulted and threatened him.

Mr. Justice Bell will deliver his judgment this week.