R v Rayal Benson Forbes
| Jurisdiction | Cayman Islands |
| Judge | Frank Williams |
| Judgment Date | 24 June 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | INDICTMENT NO: 0066/2020 |
Justice Frank Williams (Actg.)
INDICTMENT NO: 0066/2020
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
Criminal Law – Application to withdraw guilty plea pursuant to s.26 of the Criminal Procedure Rules 2019 – Charges: Attempting to pervert the course of justice – Assault Occasioning Actual Bodily Harm – Common Assault.
Mr. Neil Kumar for the Crown
Mr. Keith Myers for the Defendant
This is an application by Rayal Benson Forbes (‘the Applicant’) for permission to withdraw his guilty pleas. It is being made pursuant to s.26 of the Criminal Procedure Rules, 2019.
The defendant is charged on Indictment #66 of 2020 which contains Counts as follows:
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i. Count 1: Attempting to pervert the course of justice contrary to s.107(1)(d) of the Penal Code (2019 Revision) – an offence committed between the 30 th May 2019 and the 10 th June 2020.
a. The Count is said to have arisen from actions that he took, by way of counselling and coercing the virtual complainant in the other counts, to get her to make false statements in order to terminate those charges against him;
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ii. Count 2: Assault Occasioning Actual Bodily Harm contrary to s.216 of the Penal Code (2019 Revision) – an offence committed on the 1 st April 2019;
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iii. Count 3: Common Assault contrary to s.215 of the Penal Code (2019 Revision) – an offence committed between the 18 th May 2019;
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iv. Count 4: Assault Occasioning Actual Bodily Harm contrary to s.216 of the Penal Code (2019 Revision) – an offence committed on the 19 th May 2019.
On 13 th November 2020, whilst represented by counsel, the Applicant pleaded guilty to Counts 1, 2, and 3, and, not guilty to Count 4. The Crown 1 confirmed that the pleas to Counts 1, 2, and 3 were accepted by the Crown “on the full facts of the case” and advised that Count 4 would remain on file on the date of sentencing.
The application to withdraw the guilty pleas was filed on the 10 th April 2021. In support of his application, is the Applicant's three-page, handwritten statement in which he sets out what he says were the reasons for, and the sequence of events leading up to, the guilty pleas. Those reasons may be summarized as follows:
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i. His “…current position of being remanded for an extended period for the allegations.”
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ii. “[B]eing a former officer of the court I was aware of the lengthy waiting period for Grand Court appearances.”
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iii. He did not plead guilty as accepting the facts;
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iv. “ My situation at the time which still remains, with more urgency includes”:
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a. “ The welfare of my teenage child who is in the care of my mother”
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b. “ Since my incarceration other arguevating [sic] factors is my mother's health, which she will be requiring spinal/back surgery in the very near future, which leaves her lively hood, and my son exposed with no oversight.”
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c. “Considering the current economic situation post pandemic. There will be no one to oversee care of my child and her small business which is her only livelihood”
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d. “Other factors include my forced termination of employment which leaves my home position inevitable for foreclosure when my savings becomes exhausted in the very near future”
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e. “The issue was then magnified when I was asked to sign the agreed facts a day before the sentencing”
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f. “ I signed it on instructions from my attorney and he knew I didn't agree”.
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The application was brought to the attention of his former attorney-at-law, Mr. Nicholas Dixey (“Mr. Dixey”), for his comments, with the Applicant's waiver of legal professional privilege. Mr. Dixey submitted a statement dated 7 June 2021 in which he set out his account of the events leading up to the Applicant's pleas of guilty. In the said statement, counsel indicates that, throughout the time of his representation of the Applicant (from 14 September 2020 to 24 February 2021) he gave him full and careful advice. For example, in paragraph 19 of his statement, he asserts the following:
“ 19. I attended HMP Northward and once again advised Mr. Forbes fully in respect of the matter. He maintained that he was prepared to plead guilty on full facts to counts 1–3. We went through the endorsement in detail paragraph by paragraph. Mr. Forbes signed the endorsement and initialed each page. Mr. Forbes's initials and signature were witnessed by prison officer Litchmore. A copy of the signed endorsement is exhibited.”
The contents of paragraph 21 of counsel's statement are also of relevance. They read as follows:
“ 21. On 12 November 2020 Mr. Forbes pleaded guilty on full facts to counts 1–3, which the Crown accepted. Ms Oko was then tasked with preparing the summary of facts. The purpose of the summary was to assist the sentencing judge by condensing the complainant's ABE interviews (the first of which ran to some 138 pages) and excluding references to the counts or charges that were not being proceeded with. It was always understood that the defence review would be by way of a comparison of the summary with the complainant's ABE interviews, rather than taking any substantive issue that could impact upon sentence. Mr. Forbes had indicated to the court through me that he had pleaded guilty on full facts to counts 1–3, which of course was consistent with our discussions when he signed the endorsement.”
On behalf of the Applicant, Mr. Myers sought to stress that, in making this application, it was not being sought to put any blame on counsel who previously represented the Applicant, in putting across what he said was the subtleness of the Applicant's point. This application, he argued, complies with the requirements of the relevant rule. The bases of the application were matters that were peculiar to the Applicant. These factors were the catalyst that led the Applicant to enter the guilty plea when he did not accept the facts, it was submitted.
At paragraph 3 of the Applicant's written submissions it is also submitted that:
“ …to allow the current pleas [to remain] would be unjust and, in the circumstances, not to allow Mr. Rayal Forbes to withdraw the guilty plea would be deemed ‘unjust’.”
On the Crown's behalf, Mr. Kumar submitted that: “ It is not suggested by the applicant that he was under undue pressure from the court or his attorney.”
Mr. Kumar submitted that the Applicant seems, in broad terms, to be putting forward two main bases for the application, namely (i) the pressures that he faced that led him to enter the guilty pleas; and (ii) that he does not accept the contents of the Agreed Statement of Facts document and would not have entered the pleas if his counsel had not advised him to do so.
He reviewed several authorities which set out general principles for guidance in applications to withdraw guilty pleas, and among them are:
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i. R v KC 2;
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ii. R v Nightingale 3; and
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iii. Garfield Silburn Jr v The Queen 4.
In relation to the issue raised of “pressures”, Mr Kumar submitted as follows at paragraph 23 of the Crown's written submissions:
“ 23. Respectfully, the applicant's argument regarding pressure does not advance the contention that it would be unjust not to allow a change of plea; the argument is without merit and should be rejected.”
In relation to the second issue, at paragraph 27 of the written submissions, it was submitted as follows:
“ 26. There is no suggestion that Mr Dixie (sic) has acted improperly in accordance with that duty. The apparent criticism levelled by the applicant is that he did not accept all aspects of the agreed statement of facts. However, at the time he entered his plea, the Applicant had been advised by a very experienced attorney and entered a guilty plea accordingly.” The application, therefore, ought to be refused, he submitted.
In the Criminal Procedure Rules, 2019, the procedure for an application to withdraw a guilty plea is set out at paragraph 26 as follows:
“ Application to withdraw a guilty plea
26. (1) This rule applies where the accused wants to withdraw a guilty plea.
(2) The accused must apply to do so —
(a) as soon as practicable after becoming aware of the reasons for doing so; and
(b) before sentence
(3) The application must (unless the court otherwise directs) be in writing and where the application is in writing, the accused must serve the application on —
(a) the court officer; and
(b) the prosecutor.
(4) The application must —
(a) explain why it would be unjust not to allow the accused to withdraw the guilty plea;
(b) identify —
(i) any witness that the accused wants to call; and
(ii) any other proposed evidence; and
(c) state whether the accused waives legal professional privilege, giving any relevant name and date.
(5) The court shall consider the matters stated under paragraph (4) and may in its discretion, grant or refuse an application made in accordance with this rule, as the justice of the case requires.
(6) The court may, for the purposes of paragraph (5) —
(a) list the case for directions;
(b) ensure that the accused understands where necessary, the import of waiving privilege; and
(c) give direction for the application to be sent to the previous attorney-at-law (together with a confirmation that privilege has been waived), for the detailed comments of the previous attorney-at-law to be incorporated in a witness statement.”
This procedure has been followed. That having been done, the decision of whether to grant or refuse an application to withdraw a guilty plea is one that falls to the exercise of the court's discretion. This must be exercised judicially (see the case of R v Dodd (Eric Henry) & Others 5, for example).
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