Jersey Unreported Judgments

[2011]JRC180

Royal Court

(Samedi)

14 September 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Tibbo and Olsen.

The Attorney General

-v-

Michael Stephen Pereira

Application to change plea.

C. M. M. Yates Esq., Crown Advocate.

Advocate S. A. Pearmain for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an application by Mr Michael Pereira to withdraw pleas of guilty which he has entered to Counts 2 and 3 on an Indictment laid against him on 15^th June.  The two counts are counts of grave and criminal assault, alleged to have been committed by him on his parents.  He was first charged on 19^th March with those two counts of grave and criminal assault, and also with causing malicious damage at their house and he was remanded in custody.  Subsequently on 21^st March he reserved his plea in the Magistrate's Court and was released on conditional bail.  He subsequently appeared again the Magistrate's Court on 4^th April where he entered not guilty pleas to the two assaults and pleaded guilty to causing malicious damage and the case was committed to the Royal Court on 16^th May. 

2.        Mr Pereira had the benefit of legal advice.  On 2^nd June, a long letter of advice was sent to him by his then lawyers and no objection is taken to the quality of that advice in the submissions made before us today.  Indeed the defendant accepts that the advice tackles the points which needed to be tackled in any advice which a lawyer gives his client in cases like this.  After receipt of that letter, the defendant being on bail, there was a meeting on the 8^th June between the defendant and his lawyers where the advice was discussed and instructions were given to the lawyers to enter guilty pleas on the entire Indictment.  There was a telephone conversation on 13^th June where no question was raised as to whether discussion about the plea would re-opened and on 15^th June there was a meeting, again with the advocate assisting the defendant and the proposed guilty plea was again discussed and agreed.  On 17^th June the defendant appeared before the Royal Court when indicted and entered guilty pleas, indicating that his guilty plea to Count 3 was entered on the basis of recklessness.  

3.        The application to withdraw the guilty plea today is made on the basis that when the defendant decided he would enter the guilty plea it was because he wanted to get the matter over and done with.  The plea was said to us to be inconsistent with everything he had said to the police on his question and answer interview and also inconsistent with what he said to the probation officer, on the production of the social enquiry report, and to the psychologist, in relation to the production of the psychological report.  Therefore, on these assertions, it is said that the defendant ought to be given leave to change his plea. 

4.        The law which we apply has been considered by this Court on previous occasions.  There is a judgment in the case of AG-v-Donachie [2009] JRC 169A, of Commissioner Clyde-Smith where the case of AG-v-Durkin and Others [2004] JRC 068, is referred to and in addition the case of R-v-Sheikh (2004) EWCA Crim 492, a decision of the English Court of Appeal.  We apply those cases and we have also noted from the full report of Donachie the case of R-v-Bow Street Stipendiary Magistrate ex parte Roche Times, February 5, 1987 when it was held that it was a proper exercise of discretion to reject an application to withdraw a plea of guilty made without the benefit of legal advice when the Magistrate believed the application was made through fear of the imposition of a custodial sentence.  And of course in this case it is different because legal advice was given. 

5.        In the case of Sheikh, and this is the area which counsel for the defendant relies, the English Court of Appeal said this:-

"It is well accepted that quite apart from cases where the plea of guilty is equivocal or ambiguous the Court retains a residual discretion to allow the withdrawal of a guilty plea where not to do so might work an injustice.  The examples might be where a defendant has been misinformed about the nature of the charge or the availability of a defence or where he has been put under pressure to plead guilty in circumstances where he has not truly admitting guilt.  It is not possible to attempt a comprehensive catalogue of the circumstances in which a decision might be exercised, commonly however it is reserved for cases where there is doubt that the plea represents a genuine acknowledgement of guilt."

6.        The Court has noted that there is no question here about the defendant being misinformed about the nature of the charge or the availability of a defence.  There certainly is no question of the defendant being put under pressure to plead guilty in circumstances where he is not truly admitting guilt, in the sense that the history which I have already recounted shows that the defendant had full legal advice that was followed up with two meetings.  There was indeed a nine day period between the date of the first meeting and the date when the guilty plea was entered, and an even longer period from the date the legal advice, in writing, was first received.  Now the Court has noted from the background reports that the defendant has some difficulties with the written word and may be dyslexic, but he certainly was able to read a part of the advice and he had the time to read and consider carefully the advice if he chose to do so. 

7.        In our view, taking into account all these factors, the defendant had an opportunity to change his mind if he wished to do so, did not change his mind and the guilty plea that was entered on 17^th June reflects the position that he intended then to admit his guilt.  In the circumstances the Court is not minded to exercise its discretion to allow the change of plea at this stage.  

Authorities

AG-v-Donachie [2009] JRC 169A.

AG-v-Durkin and Others [2004] JRC 068.

R-v-Sheikh (2004) EWCA Crim 492.

R-v-Bow Street Stipendiary Magistrate ex parte Roche Times, February 5, 1987.