The Queen V Ricardo Alexander

IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
GRENADA
IN THE HIGH COURT OF JUSTICE
CLAIM NO. GDAHCV 201210043
BETWEEN:
THE QUEEN
Claimant
AND
RICARDO ALEXANDER
Defendant
Appearances:
Mr. Andre Thomas for the Defendant
Mr. Howard Pinnock, Crown Counsel for the Claimant
2013: February 26
March 13; 21
JUDGMENT
[1] PERSAD, J: This case raises several important issues in relation to the
defendant’s plea of guilty and the extent to which the court has a power on its own
motion to withdraw the plea of guilty and enter a plea of not guilty in cases where
the evidence on depositions does not support the plea.
[2] The defendant in this matter was charged on the 13th August 2011 with the
offence of manslaughter. The particulars of the offence being that Ricardo
Alexander on Saturday, 13th August 2011 did commit manslaughter by causing the
death of Len Roberts by unlawful harm.
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[3] This charge was laid pursuant to section 232 of the Grenada Criminal Code.
Having been charged the defendant was committed to the High Court and the
Director of Public Prosecutions indicted Mr. Alexander on the charge of
manslaughter.
[4] Before the High Court, the defendant indicated his willingness to plead guilty to the
charge of manslaughter, the facts having been read, mitigation was received
on his behalf. The Prosecution in outlining the facts of the case provided the court
with the following summary:-
The now deceased Len Roberts was 57 years old residing at River Sallee
in the parish of St. Patrick’s. The now convicted man who is 27 years old
also hails from the same village.
On Saturday 6th August 2011, sometime in the morning, Len Roberts was
walking in River Sallee with a container in his hand. The convicted man
asked him for a phone call but Len Roberts told him that he had no credit.
The convicted man started to wrestle with him and tripped him causing
him to fall on his back on the concrete road. Len Roberts was found
seven (7) days later lying motionless on his verandah. Dr. Trevor Friday,
the District Medical Officer for st. Patrick’s was called and on arrival
pronounced the body dead.
Dr. Nicholas Redhead performed the post mortem on the 15th August
2011 and noted the following:-
1. On external examination, multiple superficial bruises were
noted to the back of the head and on the upper arms.
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2. On internal examination, the vessels around the brain were
filled with blood and there was haemorrhage and swelling on
the medullaoblongata (brain stem).
3. The cause of death was increased intra-cranial pressure; that
is, pressure inside the brain contributed to by brain stem
haemorrhage.
4. This internal pressure/damagewas caused by trauma to the
back of the head by a blunt instrument or by the head
knockingagainst a wall or solid object.
DIC #163 John arrested and charged Ricardo Alexander on the 16th
August 2011 for manslaughter.He has been in custody since.
[5] Having heard the matters raised in mitigation by counsel for the defendant the
court reserved its decision to consider the submissions. Having had an
opportunity to review the evidence on depositions, the court invited counsel to
assist the court on a number of matters. Firstly, the court asked counsel for the
Prosecution to identify the material on the Prosecution’scase that implicated the
defendant in the commissionof the offence.
[6J In particular, the court drew to the attention of Crown Counsel the following
matters:-
1. That it appeared on the Prosecution’s case that the cause of death
was due to injury to the head of the deceased sustained on the 6th
August 2013 that causeddamage to his skull;
2. That none of the witnesses to the event on the 6th August 2011 that
the Prosecution relied on to make their case testified that the
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deceased hit his head when he fell; that the evidence at the highest
amounted to seeing the accused and the deceased wrestling and the
deceased fell on his back. Neither witness gave evidence of seeing
the deceased hitting his head on the 6th August 2011.
3. It is not disputed that the deceased after he fell on the ground on his
back got up and walked away. It is also not in dispute that the
deceased was alive and only found dead at his home some seven
days later. On the date in which he was found lying on the ground on
his back in his veranda there is evidence coming from a relative that
on the morning of his body being found he was fine and had a
conversation earlier with the relative.
4. Having regard to the manner in which the body was found seven days
after the incident, was the Prosecution in a position to establish that
the injury to the deceased’s head was not as a result of an injury
sustained by the deceased when he collapsed in his verandah.
[7] Further, there was also on deposition evidence of the brother of the deceased of
a conversation with his brother (the deceased) which happened some time after
the incident of 6th August 2011. According to the brother of the deceased, he was
told that the deceased had hit his head earlier that day.
[8] The court raised the question of the admissibility of such a statement, particularly
having regard it was a classic example of an out of court statement being made by
a person who was not being called as a witness and which was being tended for
its truth as opposed to the fact it was said. Counsel was invited also to assist the
court as to whether such a statement was admissible under any of the exceptions
to the hearsay rule.
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[9] The matter was adjourned for the parties to consider the issues raised and on the
return date counsel for the Prosecution indicated to the court that he was in
agreement with the matters raised by the court, in terms of the nexus between the
evidence on depositions and the evidence necessary to establish prima facie guilt
of the accused. Specifically on the issue of the hearsay evidence, Crown Counsel
accepted that such evidence is not admissible by virtue of any of the exceptions
under the hearsay rule.
[10] This having been accepted, the question for the court’s determination was how
should the court approach the guilty plea presently before it. There was no doubt
that the plea was entered into voluntarily. However, it was entered into on the
basis that the evidence of the conversation between the brother of the deceased
and the deceased was admissible.
[11] It was generally accepted by all the parties that the appropriate course to be
adopted would be to withdraw the plea of guilty and to enter a plea of not guilty
and allow the Prosecution an opportunity to assess its future approach to the
case. The issue of course was whether the court was at liberty to withdraw the
plea of guilty in the particular circumstances of this case.
The Law relating to Guilty Pleas
[12] A useful summary of the principles relating to a plea of guilty is to be found at
paragraph D12.65 et seq of Blackstone Criminal Practice and Procedure 2011.
The following principles can be extracted:-
1. Generally a plea of guilty can only be entertained if it is made by the
accused personally. If counsel purports to plead guilty on behalf of an
accused, the purported plea has no validity and the proceedings
constitute a mistrial.
2. As to the effect of Plea of Guilty once the accused pleads guilty, the
Prosecution are released from their obligation to prove the case.
There is no need to empanel a jury, and the accused stands
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convicted simply by virtue of the word that has come from his own
mouth. The only evidence the prosecution then need call in the
ordinary case is that of the accused’s antecedents and criminal record
(see 019.45 to 019.51).
3. Where an accused wishes to change his plea from not guilty to guilty
(see 012.87), this causes little difficulty. Where, however, he seeks to
change his plea from guilty to not guilty (see 012.88) more difficult
considerations arise, not least because such a change represents an
assertion that an accused has realised that he did not commit the
offence after all. The considerations in this category also include
issues as to whether a plea was ambiguous (see 012.93) or
involuntary (see 012.94).
4. The judge may allow the accused to change his plea from not guilty to
guilty at any stage prior to the jury returning their verdict. The
procedure is that the defence ask for the indictment to be put again
and the accused then pleads guilty. If the change of plea comes after
the accused has been put in the charge of a jury, the jury should be
directed to return a formal verdict of guilty.
5. This was emphasised in Heyes [1951] 1 KB 29, where the accused
changed his plea in the jury’s presence but they were not asked to
return a verdict, and the judge proceededforthwith to sentence. On
appeal, Lord Goddard CJ said:
Once the jury had heard the appellant say that he wished to
withdraw his plea and admit his guilt, the proper proceeding was
for the court to ask them to return a verdict. It appears that
counsel did suggest to the learned recorder that this was the
proper course; but the recorder thought that it did not matter. It
does matter because, once a prisoner is in charge of a jury, he
can only be either convicted or discharged by the verdict of the
jury.
6. A judge has a discretion to allow the accused to withdraw a plea of
guilty at any stage before sentence is passed. This was confirmed in
Plummer (1902]2 KB 339, where the major question for the court
was whether P’s conviction on a guilty plea in relation to a conspiracy
charge could be sustained in view of the acquittal of his five alleged
co-conspirators. P was not sentenced until after the acquittal of the
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others, and, prior to sentence, asked to withdraw his plea. Wright J
said (at p. 347):
Another point is raised in this case, namely, whether the court had
power to allow the appellant to withdraw his plea of guilty. There
cannot be any doubt that the court had such power at any time
before, though not after, judgment [i.e. sentence] and, as we infer
that but for the erroneous opinion that there was no such power
the withdrawal would have been allowed, this might of itself be a
ground for a venire de novo.
7. Similarly, Bruce J held that the first-instance court clearly had a
discretion to allow the change of plea; that, if it had exercised its
discretion against the appellant, the appellate court might have had no
power to interfere; but, in fact, the discretion was never exercised one
way or the other and that had deprived the appellant of a chance of an
acquittal, with the consequence that the conviction could not stand (at
p.349).
8. The existence of the discretion was indirectly confirmed by the House
of Lords in S v Recorder of Manchester [1971]AC 481, when it held
that, in the context of change of plea, there is no conviction until
sentence has been passed, and therefore magistrates (like the Crown
Court) can allow a change to not guilty provided they have not yet
passed sentence.
9. Finally, in Dodd (1981) 74 Cr App R SO, the Court of Appeal
unhesitatingly accepted the three following propositions from counsel
for D, namely that: (a) the court has a discretion to allow a defendant
to change a plea of guilty to one of not guilty at any time before
sentence; (b) the discretion exists even where the plea of not guilty is
unequivocal; and (c) the discretion must be exercised judicially (see p.
57).
10. The authorities make clear that the discretion now under
consideration should be sparingly exercised in favour of the accused.
Thus, in Mc Nally [1954] 1WLR 933, where the accused had
indicated even in the magistrates’ court an intention to plead guilty,
could not possibly have misunderstood the nature of a straightforward
charge and had unequivocally admitted guilt when the indictment was
put to him, the Court of Criminal Appeal approved the trial judge’s
decision to refuse a change of plea. The same approach was more
recently adopted in Revitt v DPP [2006] 1 WLR 3172).
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11. Even if the accused was unrepresentedwhen he pleaded but instructs
solicitors during an adjournment prior to sentencing and is advised by
them that he has a defence, the court is not obliged to accede to a
change of plea South Tameside Magistrates’ Court. ex parte
Rowland [1983]3 All ER 689.
12. In Ex parte Rowland, in considering such an application for a change
of plea, the magistrates, ‘rightly, balanced the instructions which the
applicant had given to her solicitor after [the original plea] against the
prospect that she was changing her story because of the possibility
that she might be sentenced to a custodial sentence’ (per Glidewell J
at p. 692J). Furthermore, the magistrates ‘were perfectly entitled to
come to the conclusion to which they did come’ (i.e. that fear of a
custodial sentence was the real motivation for the change of plea),
and thus were justified in exercising their discretion against R.
13. Glidewell J approved the advice given to the magistrates by their clerk
that, ‘to allow a change of plea was a matter for [the magistrates’]
absolute discretion and that once an unequivocal plea had been
entered the discretionary power should be exercised judicially, very
sparingly and only in clear cases’ (at p.692A). However, the
implication is that, had the magistrates thought the plea to have been
entered under a misapprehension of law as to the nature of the
offence, then their only proper course would have been to allow the
application. Although Ex parte Rowland was a case concerning
change of plea in the magistrates’ court, there is no reason why the
same principles should not apply in the Crown Court.
14. If the accused was represented when he entered his plea of guilty,
there would seem to be no absolute bar to his applying to withdraw
the plea, but it will obviously be very difficult to convince the court that
the plea was entered by a genuine mistake. This was demonstrated
in Drew [198511WLR 914. where Lord Lane CJ said (at p. 923C):
‘… only rarely would it be appropriate for the trial judge to
exercise his undoubted discretion in favour of an accused person
wishing to change an unequivocal plea of guilty to one of not
guilty. Particularly this is so in cases where, as here, the accused
has throughout been advised by experienced counsel.’
15. Provided the court at first instance recognised that it had a discretion
to allow a change of plea and applied the correct principles in
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determining the application, the Court of Appeal will not interfere with
the trial judge’s exercise of discretion – see Dodd (1981) 74 Cr App
R 50 (see D12.88), Cantor [1991] Crim LR 481. Anjum [2004]
EWCA Crim 977 and Towers [2004] EWCA Crim 1128.
16. It is the duty of counsel to advise his client on the strength of the
evidence and the advantages of a guilty plea as regards sentencing
(see, e.g., Herbert (1991) 94 Cr App R 233 and Cain [1976] QB
496). Such advice may, if necessary, be given in forceful terms
(Peace ~ Crim LR 119). Where an accused is so advised and
thereafter pleads guilty reluctantly, his plea is not ipso facto to be
treated as involuntary (ibid.). It will be involuntary only if the advice
was so very forceful as to take away his free choice. Thus, in Inns
(1974) 60 Cr App R 231, defence counsel, as he was then
professionally required to do, relayed to the accused the judge’s
warning in chambers that, in the event of conviction on a not guilty
plea, the accused would definitely be given a sentence of detention
whereas if he pleaded guilty a more lenient course might be possible.
This rendered the eventual guilty plea a nullity.
17. The Code of Conduct of the Bar, Written Standards for the Conduct of
Professional Work, para. 12.3, confirms that defence counsel should
explain to the accused the advantages and disadvantages of a guilty
plea. It goes on to say that he must make it clear that the client has
complete freedom of choice and that the responsibility for the plea is
the accused’s. It is common practice, endorsed by para. 12.5.1, to tell
an accused that he should plead guilty only if he is guilty (see Lord
Parker CJ’s observation in Turner [1970] 2 QB 321 at p. 326F that:
Counsel of course will emphasise that the accused must not
plead guilty unless he has committed the acts constituting the
offence charged’). However, it may be felt that, on occasions,
realistic advice about the strength of the prosecution case and the
sentencing discount for a guilty plea will effectively force an
accused into a guilty plea however punctilious defence counsel
may be in saying that he should plead guilty only if he is guilty.
18. Where an accused persists in pleading guilty notwithstanding telling
counsel that he is in fact innocent, counsel may continue to act for him
but must say nothing in mitigation that is inconsistent with the guilty
plea (paras. 12.5.2 and 12.5.3). Counsel may thus be forced to
confine his mitigation to the circumstances and background of the
offender and any matters minimizing the gravity of the offence which
are apparent on the face of the prosecution statements; since his only
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instructions about the offence itself are that the accused is not guilty
of it, counsel cannot explain (as he might otherwise do) the
immediate temptations etc. that led to its commission.
[13] It is clear from these extracted principles that this court has the jurisdiction at this
stage of the proceedings to change the plea, it not becoming functus by passing
sentence.
[14] It is also clear that any discretion to change a plea has to be done judicially and
based on the particular circumstances of each case. Although the editors of
Blackstone did not identify any case where a court vacated the plea on the basis
of insufficiency of evidence to support the plea, it must follow that a court has
jurisdiction to allow a change of plea where the evidence adduced on deposition
does not support the elements of the offense.
[15] It is also clear to this court that the plea was entered under a misapprehension by
the defence of the admissible evidence on the Prosecution’s case.
Can the Court allow the withdrawal of a plea where insufficiency of
Evidence?
[16] The ability of the High Court to quash an indictment on the basis of common law
principles is well established in circumstances where there is insufficient evidence
to sustain the offence alleged in the indictment.
[17] Two recent authorities out of Trinidad and Tobago support this proposition. See in
this regard the cases of Brian Guyapersad HCA Cr 69/08 and Micayeel
Mohammedv The State H.C. Cr. No S049/081.
[18] It would seem to follow that if the High Court has a jurisdiction to quash an
indictment for insufficiency of evidence it must be that the court would be entitled
1 Both cases can be found on www.ttlawcourts.org
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to exercise a jurisdiction to allow an accused person to change a plea from guilty
to not guilty in circumstances where prima facie the evidence on depositions does
not appear to support the elements of the offence.
[19] Of assistance is a case from the Court of Appeal in Trinidad and Tobago in Small
& 800doo v The State Cr App 93/94 of 96. In this case the applicants Ricky
Small and Patricia 8oodoo were indicted for the murder of Samuel Karmody that
occurred on the 2nd September 1994.
[20] When the indictment was read to them, they pleaded guilty to manslaughter. The
State accepted the pleas and the pleas were formally accepted and entered by the
court. Each person accepted responsibility for the commission of the offence.
[2’1] At page 6 of the unreported judgment, Justice of Appeal Ibrahim noted as follows:-
It is because of what we have already said that we would order in the case
of Patricia Boodoo that the plea of guilty be removed from the record and
the conviction and sentence accordingly would be quashed.
In this case, because all the evidence in the case had been placed before
the trial judge and we ourselves have looked at the statements given by
this particular applicant and they do not disclose, (and Mr. Pantor quite
frankly concedes that) they do not disclose criminality in her in the
commission of the offence apart, however, from the oral statement which
he valiantly tried to persuade us to accept, but which later he had to
concede on the basis that it was equivocal , it was not a factor to be taken
in the equation,
The Court then quashed the conviction against the Applicant, 800000,
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[23] Having regard to the matters outlined above, this court finds that the plea was
entered under a misapprehensionof the admissible of evidence and the court will
allow the Defendant to withdraw his plea of guilty to the charge of manslaughter
and substitute a plea of not guilty so that the Prosecution can consider all its
available evidence and determine how they choose to proceed with the matter.
Rajiv Persad
High Court Judge
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