W. J. Bailhache, Q. C ., Deputy Bailiff, and Jurats Kerley and Nicolle.
The Attorney General
Application to Inferior Number for leave to appeal out of time against conviction by the Relief Magistrate.
D. J. Hopwood, Esq., Crown Advocate.
The accused appeared in person.
THE DEPUTY BAILIFF:
1. This is an application for leave to appeal out of time by Mr Bidan, the applicant, in relation to his conviction on 2nd December, 2011. He had been charged with a single charge of harassment contrary to Article 3(1) of the Crime Disorderly Conduct and Harassment (Jersey) Law 2008 on 21st October, 2011. The charge alleged that between 15th June and 5th October, 2011, he pursued a course of conduct amounting to harassment against the complainant, a Miss A.
2. He was represented at the time by Advocate Pearmain of Messrs Appleby and on 2nd December, 2011, he entered a guilty plea before the Relief Magistrate. The Relief Magistrate raised the question as to whether a background report should be prepared for the purposes of sentence but in fact the matter was dealt with there and then and the facts were heard. As a result the Magistrate, having heard mitigation from Advocate Pearmain, bound over the applicant to be of good behaviour for 12 months, imposed a 3 year restraining order under Article 5(2) of the 2008 Law and he expressly stated that he had taken into account the medical issues of the applicant and the absence of violence or the threat of violence.
3. The applicant was advised by Messrs Appleby shortly after the hearing that he was already out of time for the purposes of an appeal and that if he wished to appeal he would have to do so very expeditiously. In fact he did not take steps to appeal until 8th May, 2012, when he signed and filed a notice of appeal against conviction, this notice was therefore submitted some 6 months and 6 days after conviction, the time limit being 8 days. He was informed by the Judicial Greffe that the notice of appeal was out of time and that he should apply for an extension of time. The form was sent to him and he was told that he needed to submit an Affidavit explaining the reasons why the appeal was not lodged in time. In August 2013, that is some 10 months later, the applicant completed the application for an extension of time and he gave reasons in it for his delay, however no affidavit was enclosed. The applicant was reminded of the absence of an Affidavit on 21st August, 2013, and a form of affidavit was submitted on 23rd February, 2014, when the applicant wrote to the Greffe. That is the time background against which we have had to consider the application for leave to appeal out of time.
4. In the case of Pitman-v-Jersey Evening Post and 1st Jersey Limited  JCA 149 which was a civil case but the same essential tests are applied on an application for leave to appeal out of time in a criminal matter the Honourable Michael Beloff Q.C., sitting as a Single Judge set out the rules of the Court in relation to applications to grant or refuse and extension of time. He said this, quoting from Sayers v Clark-Walker  1 WLR 3095:-
"It is entirely in the discretion of the Court to grant or refuse an extension of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are 1) the length of the delay 2) the reasons for the delay 3) the chances of the appeal succeeding if time for appealing is extended and 4) the degree of prejudice to the potential respondent if the application is granted."
5. In this case the delay is obviously quite considerable. The time for filing a notice of appeal expired on 10th December, 2011 and the notice of appeal itself was not filed for 5 months and not given effect by an application for leave to appeal out of time for a further 19 months or so before the Affidavit was put in. The reasons for the delay which we are given by the applicant are these: He said that he had to make sure that he had evidence of proof of the crimes committed against him by the complainant in the harassment charge, he said that the States of Jersey Police had not taken his complaint seriously when first of all it was made and things would have been different if they had done so because he would then not have been charged. He said that as of now the Police were investigating the Officer in question for misconduct. He asserted that the evidence that was given in the Court was wrong in respects which we do not find relevant for today's purposes and that the evidence given by the complainant was wrong in the sense that she asserted that she was in a relationship with him which came to an end some months before it did. Before us he said that all he did in the intervening time which is covered by the charge was to drop letters off to her asking her to pay the money back to him which she owed him as a result of her own criminal activity which he alleged against her. We think there is clearly some room for the argument over the reasons for the delay which have been given. What is clear is that whatever steps were taken by the applicant in the intervening period are not relevant if there was still a reasonable opportunity of pursuing the application for leave to appeal or the appeal. We say that in the context that if an applicant choses to follow other steps, and not therefore the steps which could and should be taken in a court of law, that is his choice and he has to live with the consequences of that and the result in this case is that the delay is much more extensive than otherwise it would be. But that is not the basis upon which we are going to decide this particular application. We decide this application primarily having regard to the prospective merits of the case. The right of appeal conferred upon any person convicted by the Magistrate's Court is set out in Article 17(1) of the Magistrate's Court (Miscellaneous Provisions) Jersey Law 1949:-
"A person convicted by the Magistrate's Court may appeal to the Royal Court a) if the person pleaded guilty or admitted the facts against the sentence; b) if the person did not and was sentenced by the Magistrate against the conviction or sentence."
6. So the right of appeal which is conferred by the statute in the case of a person who has pleaded guilty is not against conviction but only against the sentence. The Court has considered the limitations which are thus provided on a number of occasions, but it is enough today for us to point to the case of Jeune-v-AG  JLR N42a  JRC 66 where the Royal Court held that an application to appeal a conviction where there had been a guilty plea could only proceed if there were substantial grounds to enable the Court to reach the conclusion that what purported to be a guilty plea was entered by mistake, duress or fraud and should therefore be regarded as a nullity. It is absolutely clear that where allegations are made against the Advocate who was representing the applicant or the appellant, as the case may be, that the Advocate should be given the opportunity to respond to the criticism in accordance with the principles and the procedure set out in Mendes-v-AG  JCA 106. That, unfortunately, is a procedure which has not been followed in this case, we have nothing from Advocate Pearmain to enable us to assess the complaints against her which are made by the applicant in his address to us, but the essence of what he said is that he had given her instructions that he was to plead not guilty, those had been given the day before the hearing in the Magistrate's Court and these instructions were given again on the day when trial was to take place, yet she stood up and pleaded guilty on his behalf and he said that he only did not make a fuss about that in the face of the Court because he did not want to disrespect the Court. He asserted that, either that day or the day before, we were not entirely clear which was the case but it is not material for these purposes, that she had thumped the table and waved the charge sheet in his face and told him to stop harassing the complainant, and this had come as a great shock to him and that as a result he had started to go dizzy and he could not deal with the matter anymore. This account of what took place is, perhaps, not entirely consistent with the letter which he wrote to Advocate Benest the day after the hearing before the Relief Magistrate. In this letter the applicant wrote this:-
"She (that's Advocate Pearmain) was standing over me, three times she put a piece of paper in front of my face and said "don't you understand this paper, it said harassment", she then said to me "Jemma has wasted enough time on your case" I explained to her that I haven't just walked off the street, at this time I started to feel very ill, my head was starting to spin as I'd been very ill because of all these allegations and just wanted it over with. I said to her again about the statements being false. She then said to Jemma "you'll have to go back to the Police station, Mr. Bidan wants to waste more of your time". At this point I thought I haven't got a leg to stand on so I gave up. I said to Mrs. Pearmain "do you want me to plead guilty" as I wasn't getting any support and I was very upset at the way I was being treated in the room, after the meeting Mrs. Pearmain apologised for shouting at me and I just left."
7. As we say, Advocate Pearmain should have been given the opportunity of responding to that criticism and we do not have her response before us, so we only have the statement of the applicant to go on for this purpose. Even given that is so, it seems to us to be clear from that statement that this falls some way short of being able to justify a complaint that the plea was entered into by mistake or by duress. Indeed, having reviewed the transcript of what took place before the Relief Magistrate, it is clear that the applicant was able to engage with the Relief Magistrate over the question of any potential claim for civil debt which he might bring against the complainant, so we are not at all satisfied, quite the reverse, we think the applicant was aware of the consequence of a guilty plea when he entered it, he may have entered it for reasons which, today, he regrets but at the time, in our view, there is no question he was aware of the consequence of the guilty plea. That being so there is no prospect of success in the case even if we were to give leave to appeal out of time. In that context we would like to add this, we can obviously sympathise with the applicant that the domestic difficulties between himself and the complainant, his former partner, had never been considered by a court when, today, clearly he wishes that they had been. In our view he needs to put that behind him, he needs to move on. All of us make decisions in our life from time to time of different significance and importance which later we may regret but the decision to plead guilty in the applicant's case is one which really needs to be seen in that light, if he wishes to see it that way, as a mistake which is done but it has its consequences and it is finished and he must move on and it is in his interests that he does that. In the circumstances the application for leave to appeal out of time is dismissed. We would just add that in the context of the test we have to meet, had it been necessary we would also have said that the delay is too long to grant leave to appeal out of time because the consequences of doing so in this case would simply not be fair to a complainant who, 3 years and a few months later, if leave were allowed, would have to be faced with being called back before a court to give evidence on matters which are now historic. Leave to appeal out of time is refused.
Crime Disorderly Conduct and Harassment (Jersey) Law 2008.
Sayers v Clark-Walker  1 WLR 3095.
Magistrate's Court (Miscellaneous Provisions) Jersey Law 1949.
Jeune-v-AG  JLR N 42A.