Jersey Unreported Judgments

[2008]JRC220

ROYAL COURT

(Samedi Division)

15^th December 2008

The Attorney General

-v-

Zbigniew Jerzyk Krawczyk

Decision on a Costs Application.

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

Advocate M. J. Haines for the defendant.

JUDGMENT

THE BAILIFF:

1.        This is an application by the defence for an order that certain costs be paid out of public funds following the offering of no evidence by the prosecution on Count 2, which alleged attempted murder.  It Is clear that the Court has jurisdiction to make such an order pursuant to Article 2(1)(c) of the Costs and Criminal Cases (Jersey) Law 1961.  It is a question of discretion as to whether such an order should be made on the facts of this case.

2.        The material facts are in brief as follows.  On Christmas Day 2007 the defendant struck a heavy blow to the face of the victim.  On 8^th February, 2008, the defendant stabbed the same victim in the chest with a kitchen knife.  He was charged in relation to the first incident with grave and criminal assault and in relation to the second incident with attempted murder or grave and criminal assault as an alternative.  On 30th May he was indicted in relation to the first incident, Count 1, and pleaded not guilty to grave and criminal assault but offered a guilty plea to common assault.  In relation to the second incident, he pleaded not guilty to attempted murder, Count 2, but pleaded guilty to grave and criminal assault, Count 3. 

3.        On 23^rd September, there was a Plea and Directions Hearing where the Court, of its own motion, raised the question of the public interest in pursuing a charge of attempted murder when a guilty plea had been offered to grave and criminal assault and deportation was likely to follow.  The Crown Advocate responded that he had received no indication from the defence as to the basis of the guilty plea to grave and criminal assault but that he would review the matter once that basis had been disclosed.  I am told by counsel for the defendant that immediately after that Plea and Directions Hearing there was a discussion between counsel at which the basis was made clear but nothing in writing was submitted to the Crown Advocate.  On 10^th October, the Crown Advocate wrote to the defence confirming that the Crown intended to prosecute Counts 1 and 2 to a conclusion at trial.  On 20^th October, the defendant indicated that he would change his plea on Count 1 to guilty to grave and criminal assault.  On 24^th October, that is the Friday before the trial was due to commence, he provided a signed document setting out the factual basis on which he was pleading guilty to Count 3.  A draft of that statement had been prepared by the Crown Advocate.  The Crown Advocate then concluded that those pleas were sufficient to meet the gravity of the matter and that he would not pursue the charge of attempted murder. 

4.        Mr Haines, in his written submissions has drawn my attention to a helpful Judgment of Birt, Deputy Bailiff in AG-v-Gouveia [2000] JLR 324 where the Judge made the following obiter comment:-

"It is often the case that, on an indictment with a number of counts, pleas acceptable to the prosecution are tendered at a reasonably early stage following indictment.  This frequently follows dialogue between the Crown and the defence. I do not consider that an award of costs in respect of any not guilty pleas which may be accepted would normally be appropriate in the run of the mill case where such discussions take place and a solution acceptable to both sides is arrived at.  An award would, however, often be appropriate where the prosecution decide to go on with a particular count or counts, having had a reasonable opportunity to consider the pleas, and additional costs are incurred as a result. If, in such a case, there is either an acquittal on these counts following a trial or the prosecution drops the counts at a late stage after considerable extra costs have been incurred, an order for defence costs may well be appropriate."

I agree with those observations. 

5.        On the facts of this case it was not until seven days before trial that the defence indicated an intention to plead guilty to Count 1 and only on the last working day before trial that the defendant provided the precise factual basis on which he was pleading guilty to Count 3.  He might have been pleading guilty to Count 3 on a basis entirely different from that on which he was, in the event, sentenced.  It was in my Judgment, entirely reasonable for the prosecution to maintain its position in relation to the charge of attempted murder until it could be satisfied that the defendant clearly accepted the factual gravity of what had occurred.

6.        There is another point which I find persuasive.  Mr Haines told me that no work had been done between the pre-trial review on 23^rd September and 13^th October on the attempted murder charge.  It was then that the defence moved to pre-trial preparation mode.  It is not clear to me, however, that any significant extra work needed to be done.  Statements of the Witnesses had already been studied in relation to the plea on Count 3, and the issue on Count 2 would have been very narrow and discrete, that is, was there an intention to kill?  I accept that some thinking would have been necessary to relate this issue to the facts as known from the statements, but I do not think that it was such that any significant costs should have been incurred.  It should be noted that preparations for trial involved Count 1 as well, where a guilty plea was only entered at the last moment.

7.        On balance, in the exercise of my discretion, I decline to make any order for costs of the defence.

Authorities

Costs and Criminal Cases (Jersey) Law 1961.

AG-v-Gouveia [2000] JLR 324.