Tuesday, 24 April 2012

Musings, mutterings, and meanderings.

I had a 'first' last week. My first guilty plea as a solicitor. I have appeared on guilty pleas as a GDLP student, but that was always with my supervisor sitting in the Court looking over my shoulder.

This one was an interesting matter. It was in the Youth Court, so I can't publish any specific details, but here is the history (give or take or change a few details.)

The offences occurred in April last year, and occasioned an assault, disturbing the public peace, and breach of obligation. Once we explained to the client that 'assault' didn't necessarily mean that he hit the victim, but could also be assault by causing fear, he indicated that he would plead guilty. The only catch was that the report was quite specific when it described the things he said, and our client (Call him Jake) denied saying some of those things.

This isn't a difficult matter in most cases. We wrote to prosecution and intimated a guilty plea, but indicated that we disputed the facts.

Prosecution replied that they couldn't accept that fact scenario, as it contradicted their witness statement. They said that they would have to re-interview their witness.

This was in July 2011.

Over the course of the next 6 months, nothing happened. I appeared (by telephone) numerous times to say that nothing had happened, and that we maintained our fact-basis. In about February 2012, Prosecution said that they could re-interview their witness, but would like something in writing from us.

I then wrote a lovely letter to prosecution saying (in essence) the following.

"I note your request for a request in writing. I refer to the following documents.

  • Paragraph 5 of our letter to you dated xyz November 2011.
  • Paragraph 6 of our letter to you dated abc December 2011.
  • Paragraph 2 of our fax dated qrs January 2012.
  • Our fax to you of tuv February 2012
Copies of which are enclosed. I also refer to our telephone conversations on x, y, z, (from my file notes) and repeat the request therein, as follows.

We request that you re-interview your witness in this matter and put to her the fact-position referred to above."

Needless to say, nothing happened until the day before the next court date, when I rang prosecution and asked about their witness. "Oh," they said, "Oh, we reinterviewed her ages ago, and we agree with your position."


So, FINALLY, I get to Court (5 hours drive from my office... don't ask.) and sit in the Youth Court for a few hours while the Magistrate deals with the back-log of matters from the morning list. About 2 hours behind schedule, he finally gets to Jake's matter.

Jake pleads guilty to the charges, and the prosecutor gets up to make submissions. 
"On x date, Jake assaulted the victim by saying x, y, z..." He was reading from the ORIGINAL report, and had not looked at the updated notes. 

I objected. The magistrate looked at me and told me to sit down and listen to the prosecutor. I declined to do so, and repeated my objection. "Your Honour, this guilty plea was entered on an 'agreed facts' basis. These are NOT those agreed facts." 

His Honour proceeded to grill me for about 20 minutes about the basis for the agreed-facts scenario, at which point I pulled out my letters and faxes dating all the way back to July 2011 and laid them out before him. Then I pulled out my file note about the prosecutor agreeing to the fact scenario. The magistrate looked at me, and said "Oh." He then looked at the prosecutor, and said "Mr Prosecutor?" 

The prosecutor from another court room had come in by this point, and proceeded to whisper rapidly in his ear, pointing at various notes and highlights on the prosecutor's file. He then stood up and apologised, admitted that he hadn't read the file before today, and didn't know anything about the matter at all.

His Honour was less than impressed. The outcome was unbelievably favourable to my client; perhaps in part because of the prosecutor's bungles. My client (who had been slouching in his chair for the last hour) came out beaming. All in all, I call that a win!

Also, I will never be nervous about appearing before a Magistrate again. It just goes to show that if you know your case, and can argue it persuasively, you will never look bad in front of the Court. 

Also, I will never ever stop listening when the Prosecutor begins to speak.

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