R v Blatchford and Evans No. DCCRM-01-897

[2003] SADC 7

THE QUEEN v BLATCHFORD & EVANS
[2003] SADC 7

Judge Anderson
Criminal

1. Each of Ian Bruce Blatchford and Richard William Evans entered pleas of guilty to the offence of causing grievous bodily harm with intent to cause grievous bodily harm contained in the Information dated 29 January 2002.  After hearing submissions, they were then sentenced on 14 November 2002 to different terms of imprisonment.

2. Thereafter, the trial of a co‑accused, Daniel Raymond Mecozzi, charged with the same offence, occurred.  The jury was unable to reach a verdict.

3. In that trial the evidence of Dr Pohl indicated that, to a significant extent, the ongoing serious nature of the victim’s injuries and associated misfortune, as disclosed in his victim impact statement, was brought about by his frequent and deliberate refusal to follow medical advice in relation to the healing of his injured leg.

4. On 16 December 2002, as a consequence of this evidence, I heard an application to reconsider the sentences of two other co‑accused, French and Turner.  I did so and, upon reconsideration, I recalled the sentences imposed on 14 November 2002 and re‑sentenced them.  I was able to undertake this course because, at that time, I had not signed the Report of Prisoner Tried after 14 November 2002.

5. The prisoners, Blatchford and Evans, did not join in that application at that time.  Instead, they, through their respective counsel, foreshadowed applications to withdraw their original pleas of guilty.

6. I required those applications to be in writing, supported by affidavit.  On 20 January 2003, I heard counsel’s submissions in support of the application in respect of each prisoner.  I also heard Mr Hinton of counsel for the Director of Public Prosecutions in opposition.  I refused the applications and indicated that I would give reasons therefore.  These are they.

7. By way of historical completion, immediately I had done so, with the consent of counsel, I reconsidered the sentences of 14 November 2002 and, after recalling them, imposed new sentences.

8. Mr Dixon of counsel appeared for the prisoner, Blatchford.  His submissions were adopted by Mr McKenney of counsel for the prisoner, Evans.  In addition, Mr McKenney sought that I reconsider submissions earlier made on Evans’s behalf as part of the original sentencing process.  I have done that, but remain of the view that they are of no relevance to this application in the same way as I was earlier of the view that they were not then relevant to the sentencing process.

9. The essence of the submissions advanced in support of the application is to be found in paragraphs 2-8 of the affidavit of Robert Alfred Devolle sworn 14 January 2003 and filed in support of the application by Blatchford.  It is not necessary to set out those six paragraphs [paragraph 7 is omitted] here.

10. The essence of the application is that at the time the pleas were entered, defence counsel were not aware of the extent to which the ongoing nature of the injury to the victim’s leg was due to his continual refusal to obey medical advice as to the correct manner of treatment of the injury so as to best hasten recovery.

11. It is submitted that acting on the belief that the injury continued to be in need of treatment, and perhaps amputation, advice was given to each prisoner that the injury was grievous.  It is said that if the true consequence of the victim’s behaviour was known, the injury might not be so described and thus, it may have allowed for the entry of a plea of not guilty.

12. Support for this submission is said to be found in the fact that the jury in the trial of a co‑accused was unable to reach a verdict.  It is said that this fact places some doubt upon whether or not the initial injury was sufficiently serious to amount to grievous bodily harm and that this is sufficient to warrant the application being granted.

13. Mr McKenney submitted that the medical information, which was not known when the pleas of guilty were entered, was of such import that to not allow the application would be “inconsistent” with the course of justice.

14. It is said that because of a lack of information about the true cause of the victim’s ongoing injury, it would be a miscarriage of justice to not allow these applications.

15. I refused the applications because I am of the opinion that each application is entirely without merit and that what counsel thought of the ongoing cause of the victim’s injury when advising before a plea of guilty was entered is nothing to the point.  Neither is the fact that a jury in the trial of a co‑accused was unable to reach a verdict.  Obviously, no one knows why that was so and to suggest that in some way that result is indicative of some doubt as to whether the injury sustained by the victim at the hands of the joint enterprise, of which the prisoners were prime‑movers, was grievous, is unhelpful.

16. There was ample evidence in the statements available to the prisoners and their counsel before they were arraigned to enable the conclusion to be reached that the injury sustained by the victim was really serious bodily harm - which has long been the test of grievous bodily harm.

17. The statement of Dr Pohl, made from the hospital notes, describes the injury on admission.  Plainly, it was, at that time, within the accepted definition so as to be completely unaffected by what occurred subsequently in the course of treatment.  That information was clearly sufficient upon which to allow an informed and deliberate plea of guilty on the basis that that was the nature of the injury.

18. No issue has been taken in these applications on the topic of intent.  Again, the papers clearly point to a joint enterprise to seriously harm.

19. The pleas were entered after full consideration of the papers in a demonstration of a consciousness of guilt at a time so as to obtain the benefit of a discount to sentence for so doing.

20. In this circumstance, there is no basis upon which it may be said that to not grant these applications would be to ensure a miscarriage of justice: see R v Webb and Hay (1992) 59 SASR 563. The prisoners have not discharged the onus of demonstrating to the contrary.