Jersey Unreported Judgments

[2007]JRC074

ROYAL COURT

(Samedi Division)

23^rd March 2007

The Attorney General

-v-

Antonio Joao Fernandes Correia

Application for leave to appeal to change plea, following a guilty plea to:

M. T. Jowitt, Esq., Crown Advocate.

Advocate D. M. Cadin for the Applicant.

JUDGMENT

THE BAILIFF:

1.        This is an application by Antonio Correia to change the plea of guilty, on a charge of rape, which he entered on 3^rd November 2006, to a plea of not guilty. 

2.        Both Mr Cadin and Crown Advocate Jowitt agree that there are two legal questions for the Court, namely, (1) was the plea entered on 3^rd November equivocal?  And, (2), if it was not, should the Court, nonetheless, exercise its judicial discretion to permit the change of plea?

3.        As to the first question, the Crown Advocate has suggested that there are four factual issues which we should resolve:

(i)        Was the defendant advised that the offence of rape required penetration of the vagina with the penis?

(ii)       If yes, was he advised of that prior to his guilty plea to rape on 3^rd November, 2006?

(iii)      If yes, did he understand, therefore, that rape required sexual intercourse and did he understand what sexual intercourse was?

(iv)      Did the defendant believe that he was pleading guilty only to attempted rape and did he intend therefore to plead guilty only to attempted rape?

4.        We have been assisted by affidavits filed by the applicant's previous legal advisers, namely Advocates Fitz and Tremoceiro, and an affidavit from a legal assistant at Ogier, Mr Richard Langlois. 

5.        We take the following brief factual summary from the evidence before us.  On 3^rd July 2006 the firm of Ogier was instructed, under the Legal Aid scheme, to represent the applicant on charges arising out of a sexual attack upon a young woman during the early hours of the 11^th June 2006. On 3^rd August, Mr Langlois visited the applicant and, with the assistance of an interpreter, obtained instructions.  Mr Langlois went through the evidence with the applicant and explained to him the discount that was available on sentence for a guilty plea.  The applicant confirmed that he wished to plead guilty to the charge. 

6.        On 4^th September the applicant appeared before the Magistrate's Court where he was represented by Miss Fitz.  She went to see him in the cells to confirm her instructions and spoke to him with the help of the Court interpreter.  The applicant accepted that he had been at the scene and that he wanted to plead guilty although he claimed that he could not remember the incident.  He went on to say to Advocate Fitz, however, that he had not raped the woman and that he did not accept any culpability.  Miss Fitz was concerned about this change of instructions and accordingly reserved the defendant's plea.   She asked the Court to order a psychiatric report having regard to a head injury which the applicant had suffered some years before.  On 19^th September this report was received and indicated that the applicant was fit to plead and that he showed no evidence of confusion or lack of memory other than for the period around the alleged offence. 

7.        On 16^th October Miss Fitz sent a comprehensive letter to the applicant, giving her advice, both on plea and on the likely sentence resulting from a plea of guilty and if convicted after a plea of not guilty.  Her advice was that on a guilty plea he might receive a sentence around 5 years, and on a not guilty plea a sentence around 8 years.  The letter was translated into Portuguese. 

8.        Miss Fitz also sought, at the expense of Ogier, the assistance of Mr Tremoceiro who is an experienced Advocate whose native language is Portuguese.  Mr Tremoceiro had already been involved in advising the applicant because the Acting Bâtonnier had requested Mr Tremoceiro to attend at Police Headquarters on 13^th June when the applicant was interviewed by the Police.  Mr Tremoceiro had also attended on the applicant on three occasions during July.  Mr Tremoceiro visited the applicant in prison on 26^th October, accompanied by Mr Langlois and another legal assistant, to seek confirmation of the plea prior to indictment on 3^rd November.  The meeting lasted 1½ hours and Mr Tremoceiro went through all the evidence in some detail.  At paragraph 6(g) of his affidavit of 3^rd March 2007, Mr Tremoceiro states:

"In the light of the advice that I conveyed to Mr Correia regarding the weight of the evidence and the credit that he was likely to receive for a guilty plea, he instructed Ogier to plead guilty to the charge of rape.  There is no doubt in my mind that Mr Correia knew that the charge against him was the full offence of rape involving penetrative sex rather than an attempt to do so."

That statement was amplified in a supplementary affidavit sworn on 15^th March 2007.  Mr Tremoceiro stated:

"I confirm that I advised the defendant, Mr Antonio Joao Fernandes Correia, on several occasions during my dealings with him, that the offence of rape involved penile penetration of the victim.  I did so at the very least on 13^th June 2006, when I first attended on Mr Correia to advise him prior to and during questioning at the Police Station and during my attendance on Mr Correia at HMP La Moye on 26^th October, 2006. 

9.        On 3^rd November 2006 the guilty plea was entered before this Court after Advocate Le Cocq, appearing for Miss Fitz who was out of the Island, had seen the applicant in the cells and the applicant had confirmed, through an interpreter, that he wished to plead guilty. 

10.      During January 2007 a Social Enquiry Report, prepared by the Probation Service, became available to Miss Fitz.  This report indicated that the applicant had told the Probation Officer that he had attempted rape but had not penetrated the woman.  In the light of this statement, Miss Fitz asked Mr Tremoceiro to go and see the applicant again.  On 24^th January 2007 Mr Tremoceiro saw the applicant at the prison.  The applicant stated that he could now remember the incident but he did not wish to change his plea. 

11.      On 25^th January, 2007, Miss Fitz visited the applicant with an interpreter and explained that the Crown Advocate's conclusions were that he should be sentenced to 7 years' imprisonment.  Miss Fitz advised that she still considered 5 years to be the correct sentence, but that the Court might impose more.  The applicant claimed that when visited by the "three men", presumably Advocate Tremoceiro and the two legal assistants, he had been told that he would get 2 - 3 years on a guilty plea.  He became agitated and told Miss Fitz that he wished to change his plea. 

12.      This morning, Advocates Fitz and Tremoceiro and Mr Langlois were cross-examined on their affidavits and the defendant, Mr Correia, gave evidence and was cross-examined.  At the conclusion of his cross-examination by the Crown Advocate, the applicant stated that he pleaded guilty to the indictment because he thought he would get 2 - 3 years less for a guilty plea.  He also confirmed that he understood that he was pleading guilty to the crime of rape.  He had earlier confirmed that he understood what sexual intercourse was.

13.      Having considered carefully all the evidence before us we have reached the following conclusions on the facts.  The defendant was advised that the offence of rape required penetration of the vagina with the penis.  He was advised of that fact prior to his guilty plea to rape on 3^rd November 2006.  He did understand that rape required sexual intercourse and he did understand what sexual intercourse was.  He did not believe that he was pleading guilty only to attempted rape and he did not intend to plead guilty only to attempted rape.  He understood the charge and intended to plead guilty to rape.  It follows that he understood all the elements of the alleged crime when he instructed his Advocate to plead guilty on his behalf.  There was no misunderstanding in that respect.

14.      In our judgment the defendant's plea of guilty to the charge of rape was unequivocal. 

15.      We turn to consider whether, as a matter of discretion, we should allow the applicant, notwithstanding his unequivocal guilty plea to the charge, to change his plea and to enter a plea of not guilty. 

16.      The authorities indicate clearly that this judicial discretion should be sparingly exercised in favour of a defendant.  We are satisfied, from all the evidence, that the reason for the applicant's wish to change his plea arises from his knowledge that the Crown Advocate intends to move for 7 years' imprisonment.  It may be that the defendant misunderstood the advice received from Mr Langlois, who told the Court that he might have said that a discount of 2-3 years would be available for a guilty plea.  It may be, although the applicant gave evidence to the contrary before us, that there was some confusion as to whether the 2-3 years mentioned was the amount of discount or the sentence to be expected.  On the other hand there is no doubt that the applicant had received written advice from Advocate Fitz that a sentence around 5 years would be imposed on a guilty plea. 

17.      None of this persuades us that we should exercise our discretion to allow a change of plea at this stage and the application is, accordingly, refused.

No Authorities