R. v. Turkay-Tebrizli Date:, 2017 BCPC 396

Citation: R. v. Turkay-Tebrizli Date: 20171124 2017 BCPC 396 File No: 165924-3-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARAZ TURKAY-TEBRIZLI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. HARVEY BAN ON PUBLICATION s. 486.4(2) CCC Counsel for the Crown: P. Weir Counsel for the Defendant: B. Movassaghi Place of Hearing: Victoria , B.C. Dates of Hearing: March 9, 17, July 20, 21, November 23 and November 24, 2017 Date of Judgment: November 24, 2017

INTRODUCTION [ 1 ] The accused, Araz Turkay-Tebrizli has applied to withdraw his guilty plea previously entered on April 19, 2016 to Count 2 on Victoria Court File #165924-3-C.

That count alleges the following: Count 2 Araz Turkay-Tebrizli between the 20 th day of February, 2015 and the 14 th day of April 2015, inclusive, at or near Victoria, in the Province of British Columbia, being a person in a position of trust or authority towards a young person, E.J., or a person with whom the young person is in a relationship of dependency, or a person who is in a relationship with that young person that is exploitative of that young person, did, for a sexual purpose, invite, counsel or incite the said young person.

E.J., to touch with a part of her body or with an object, the body of Araz Turkay-Tebrizli, contrary to Section 153(1) (

b) of the Criminal Code . BACKGROUND [ 2 ] The accused was originally charged on Victoria Court File #165924. Initially the Crown proceeded by

summary conviction. However, the Crown amended the Information and elected to proceed by Indictment on September 28, 2015. The Crown had sworn a C3 Indictment which forms the subject matter of this application. That C3 Indictment alleges 5 counts against this accused. [ 3 ] After several initial Court appearances and discussions between the Crown and Mr. Webster on behalf of his client, this accused signed an agreed statement of facts on April 19, 2016 at the Victoria courthouse. Mr. Turkay-Tebrizli then attended with his then legal counsel, Mr.

Webster along with his articled student, Ali Dadkhah on that same date. [ 4 ] The accused, through his former legal counsel Mr. Webster, entered an election of Provincial Court Judge as well as a guilty plea to Count 2. That count essentially involves an allegation of sexual exploitation of E.J. between February 20, 2015 and April 15, 2015.

Subsequent to that guilty plea being entered in Court, the matter was adjourned for a pre-sentence report along with a forensic assessment. [ 5 ] The pre-sentence report was not prepared because the accused refused to acknowledge the facts that he had previously signed on April 19, 2016. However, there was a psychological report prepared by Dr. Dugbartey, Ph.D. dated May 27, 2016. [ 6 ] Ultimately, it became obvious that the accused denied he was guilty of the offence he previously pled guilty to. He essentially informed both his probation officer and Dr. Dugbartey of this fact.

Accordingly, his previous counsel Mr. Webster withdrew on his behalf and the accused then sought the assistance of Mr. Movassaghi who speaks a language well-understood by this accused. That language is Farsi. During all of the Court appearances there were Farsi speaking interpreters to assist this accused.

SUMMARY OF THE EVIDENCE The court heard from the following witnesses: 1. The accused, Mr. Turkay-Tebrizli; 2. Lou Webster; 3. Dr. Anthony Dugbartey, Ph.D. and; 4. Ali Dadkhah. [ 7 ] Additionally, the accused had two sworn affidavits filed in this matter: One on August 5, 2016 (Exhibit

C) and One on September 20, 2016 (Exhibit F). In reply, both Mr. Webster and Mr. Dadkhah swore affidavits, both dated December 21, 2016 (Exhibits D and E respectively). [ 8 ] I do not propose to review the evidence in any great detail. Suffice it to say the accused, his former counsel, Mr. Webster, and Mr. Webster’s previous articled student, Mr. Dadkhah were the most important witnesses in this application. That being said the court also has the testimony of Dr. Dugbartey to consider. [ 9 ] I will first deal with this accused’s previous legal counsel, Mr.

Webster’s testimony. [ 10 ] On March 17, 2017 in the afternoon session the court heard testimony from Mr. Webster. Mr. Webster has been practicing law for some 19 years. Mr. Webster was first introduced to the accused through his articled student Mr. Dadkhah who brought the accused to his office. Mr. Dadkhah had primary responsibility for coordination of the file because he was Farsi speaking and Mr. Webster was not. As far as dates and setting up appointments that was Mr. Dadkhah’s responsibility. On April 27, 2015 a counsel designation notice was signed. Mr.

Webster initially met with the accused who was very concerned and who had a great deal to say. The accused presented documents that were given to him upon his release. He testified the first court date was approximately in middle of June 2015 and the particulars were disclosed to his office on July 23 or 24, 2015. There was a follow-up meeting on August 12, 2015 with the accused and subsequent materials were disclosed by the Crown in September. [ 11 ] Mr. Webster was completely reliant on Mr. Dadkhah as Mr. Webster is not at all fluent in Farsi. Mr.

Webster testified that he met with the accused on 3 or 4 other occasions but that the accused attended some 29 times at the office. Mr. Webster felt it was

important to meet with the accused and did so on 5 or 6 occasions. At no point was there any doubt that Mr. Webster was the senior counsel on the file and that his instructions to Mr. Dadkhah were not to take over conduct of the file. [ 12 ] Mr. Webster testified that it was difficult to keep this accused on task. He informed the accused there was a mandatory minimum sentence. Although he had no independent recollection and it is not mentioned in his affidavit, Mr.

Webster testified he would have informed the accused that he had a right to a jury trial given this was an indictable charge which also carries a right to a preliminary inquiry. [ 13 ] While he agreed with counsel for the accused Mr. Movassaghi that he does not have recollection of everything that took place, he was clear that he relied on Mr. Dadkhah to assist him only with translation of English into Farsi. He had no reason to doubt everything that was being said to him by Mr. Dadkhah. In his mind the conversations the accused had with Mr.

Dadkhah in his presence had all the hallmarks where people were understanding each other. [ 14 ] In September of 2015 Mr. Webster testified he received instructions from the accused to pursue a resolution of this matter. Mr. Weir from the Crown had conduct of the matter and a new initial sentencing position was received from the Crown given the matter had now been prosecuted by indictment. The Crown’s initial sentencing position was for an 18 month jail sentence on the latest information.

After that negotiations took place between counsel for the accused for the mandatory minimum penalty by way of a joint submission for twelve months imprisonment. Accordingly, he had an agreed statement of facts signed by the accused that he been translated through Mr. Dadkhah in Farsi. [ 15 ] On April 19, 2016 Mr. Webster attended with his client in Victoria Provincial Court and entered a guilty plea on his client’s behalf having previously received his client’s signed written agreed statement of facts.

It is clear from reviewing the court transcript from April 19, 2016 there was no plea inquiry conducted by the presiding Provincial Court Judge and Mr. Webster testified it was not his general practice to go through a plea inquiry with his clients when entering guilty pleas. [ 16 ] Prior to the agreed statement of facts that was drafted by Mr. Weir, Mr. Webster took responsibility for having it translated to the accused. In hindsight a plea inquiry might have assisted in fact what Webster already believed the accused to understand. Mr.

Webster was satisfied that the accused knew what he was doing and had the agreed statement of facts adequately explained and translated to him in Farsi. [ 17 ] Mr. Webster agreed with the suggestion by Defence counsel that the accused was an unpredictable client. [ 18 ] The Crown then asked a few questions of Mr. Webster. Mr. Webster has on several occasions acted as ad hoc counsel for the Crown. He has had other people act as interpreters. He also testified that he spoke with this accused in English by keeping things simple with him. At no point did he ever hear from Mr.

Dadkhah that this accused did not understand him. Therefore, the accused instructed Mr. Webster to plead guilty to Count 2 of the indictment to sexual exploitation notwithstanding that had the accused wished a Trial, Mr. Webster indicated that he would not have acted for him but would have arranged other counsel. Mr. Webster was adamant that it was the accused’s decision to plead guilty.

Based on a joint submission for a twelve month jail sentence, Webster testified the accused was content and that he received clear instructions from the accused to plead guilty. [ 19 ] I will next deal with the articled student at the time Mr. Ali Dadkhah. Mr. Dadkhah, now a commercial and corporate lawyer in this Province, was at the relevant time period an articled student for Mr. Webster. Mr. Dadkhah’s sole responsibility in his dealings was

interpretation of this criminal matter involving this accused and Mr. Webster. Mr. Dadkhah is completely fluent in Farsi and was able to communicate all matters between the accused and Webster during all meetings, be it in person or via telephone. Mr. Dadkhah has a law degree which was studied in the Farsi language. [ 20 ] Defence counsel attempted to undermine the credibility of Mr. Dadkhah in his role as interpreter of the discussions between the accused and Mr. Webster. Mr. Dadkhah was firm at all times in his responses to defence counsel that the accused understood everything that was being said to by Mr.

Webster when translated through him to the accused. There was absolutely no doubt in his mind the accused knew all of the explanations in law that Mr. Webster gave the accused and that the accused knew and understood all 11 paragraphs in the agreed statement of facts that was signed by him on April 19, 2016. [ 21 ] Mr. Dadkhah was also present in court with Mr. Webster and the accused on April 19, 2016 when the guilty plea was entered to count number 2 on the C-3 information. Mr.

Dadkhah was aware that a pre-sentence report and a psychological assessment would be prepared for the court and the matter would be adjourned for sentencing. [ 22 ] Mr. Dadkhah was informed by the accused that he had some credit card issues and that he wanted to know when he would be going to jail. Mr. Dadkhah also made it clear to the accused through Mr. Webster that the accused was looking at a mandatory minimum sentence of one year in jail because the Crown proceeded by indictment. Mr.

Dadkhah also had notes to the effect that the accused mentioned to him jails were like hotels in this country compared to Iran. [ 23 ] In re-examination by the Crown, Mr. Dadkhah related an impromptu discussion he had with the accused on March 2, 2017 at a local Persian restaurant. The accused, who had been working at the restaurant, came over to a table where Mr. Dadkhah, and other members of the firm were sitting and apologized to him. The accused said it was his counsel’s plan to say that Farsi

interpretation was not satisfactory but that he did not want to do that. As a result of that discussion, Dadkhah emailed Mr. Webster immediately thereafter who then advised Mr. Dadkhah he should inform Mr. Movassaghi’s office. Dadkhah did so by telephone call to either the receptionist or voicemail. That request for a return phone call was never received by Mr. Dadkhah. [ 24 ] Dr. Dugbartey, a qualified neuropsychologist and forensic psychologist, also testified briefly on November 23, 2017. Dr. Dugbartey has authored hundreds of Court reports in his many years as a qualified psychologist in this Province. His CV was marked as Exhibit H on the voir dire . [ 25 ] Dr. Dugbartey ’s

summary and opinion are set out in Exhibit B as filed on the voir dire . Importantly, Dr. Dugbartey, who had the telephone assistance from provincially certified Farsi translators via telephone on two occasions, spent some three to four hours with

the accused. Dr. Dugbartey was of the view the accused had a good appreciation of the English language such that, had it been necessary, Dr. Dugbartey would have felt comfortable conducting the interview and assessment of the accused in the English language, if necessary. [ 26 ] The accused spoke with Dr. Dugbartey in English on several occasions and thanked Dr. Dugbartey for his professionalism and time. It was the accused’s prerogative to have a Farsi speaking interpreter to assist. In the end Dr.

Dugbartey agreed with defence counsel’s suggestion that the accused denied approximately seventy percent of the agreed statement of facts. Notwithstanding this accused’s denial, Dr. Dugbartey’s opinion remained consistent with his psychological assessment and report prepared in conjunction with a pre-sentence report for this accused and he stood by his

summary and opinion in Court. [ 27 ] The court also heard from the accused Mr. Turkay-Tebrizli at some length over several days during the voir dire . [ 28 ] This accused testified his first language is Azari Turkish. His second language which he understands very well is Farsi. His third language which he understands somewhat is the English language. He confirms that he is able to write some English and have it translated via Google translate into his own language.

He testifies that his wife speaks Farsi as her first language. [ 29 ] The accused testified that he first met Ali Dadkhah at the Inter-Cultural Association in Victoria. April 27, 2015 was the first meeting with Mr. Webster and Mr. Dadkhah together. It was his intention to retain Mr. Webster and Mr. Dadkhah was to do the interpreting into Farsi. On no occasion did the accused request assistance of an Azari Turkish interpreter when dealing with Mr. Webster or Mr. Dadkhah. Both the agreed statement of facts and the accused’s affidavits are written in English. They were explained to him in Farsi by both Mr.

Dadkhah and ultimately Mr. Movassaghi, his current counsel in terms of the accused’s affidavits on his application to withdraw the guilty plea. [ 30 ] The accused testified he knew who the complainant was. He knew the allegations were of a sexual nature and were very serious offences. He also knew that it was important to know what was going on. He also testified that he never took notes in this matter. He agreed that he used Google translate to review the agreed statement of facts and was convinced by his legal counsel’s advice that he saw no way out but to plead guilty.

He agreed and understands his affidavits are signed. The accused agreed that Mr. Dadkhah never advised him that he, Mr. Dadkhah, did not speak Farsi well. The accused agreed he himself knew there was a minimum jail sentence of twelve months in this matter. He agreed there was an explanation by Mr. Webster that there was a special relationship involving the charge and the young complainant including exploitation, albeit briefly. [ 31 ] The accused agreed that he advised both Mr. Webster and Mr. Dadkhah that he was convinced that he was in fact guilty.

He also agreed that if the complainant’s story came out in court as true, it was likely that he would be found guilty. [ 32 ] On July 20, 2017 when under cross-examination by Mr. Weir for the Crown, the accused agreed that he understood Mr. Weir to a limited extent in English. He agreed as to affidavits were explained to him in Farsi by Mr. Movassaghi and that he understands his affidavits. The accused was asked several straightforward questions which he also answered in English. The accused agreed he was a university educated man in science and literature. In university he spoke Farsi.

He never finished his education because of his arrest on political grounds in Iran. All of his education was in Farsi. He was asked a question about whether he understood most of what Mr. Webster was saying to him during meetings. The accused agreed that he understood most of what was said to him by his previous counsel, Mr. Webster. The accused was advised that there had to be relationship for exploitation, that sexual contact was explained and it didn’t matter who started it in terms of the circumstances. All this he agrees was explained by Mr. Webster with Mr.

Dadkhah interpreting to him in Farsi. [ 33 ] The Crown also spent significant time and going over social media extracts with the accused are filed as Exhibit G on the voir dire . The accused agreed that he provided the complainant with alcohol and cigarettes and that the social media extracts formed the basis for some of the agreed statement of facts which the accused agreed he signed. [ 34 ] Counsel for the Crown went through a number of critical pieces of evidence that the accused agreed with to establish the accused’s guilt.

The accused took no issue with his many text messages and emails with the complainant and did not deny he was the author, nor their respective contents. THE LAW [ 35 ] Both counsel are essentially ad idem as to the relevant law as it applies to withdrawal of the guilty plea. [ 36 ] The seminal case of R. v. Adgey (1975) 2 S.C.R. No 426 is mentioned in many of the cases. Both the Crown and Defence provided a number of cases which I have reviewed, many of which I was already familiar with. [ 37 ] In order for guilty plea to be valid, it must be established that: a. The guilty plea was unequivocal; b.

The guilty plea was voluntary; and c. The guilty plea was informed and that the accused appreciated the nature the allegations, the legal effect of the plea and the consequences of the plea. R. v. Singh , 2014 BCCA 373 at para. 33 . [ 38 ] What is also clear from the case law that guilty pleas entered while represented by counsel are presumed to be valid. See R. v. Gill , 2014, BCSC 1150 at para. 67 . [ 39 ] Section 606(1), (1.1) and (1,2) of the Criminal Code provides as follows:

606. (1) an accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others. (1.1) a court may accept a plea of guilty only if it is satisfied that the accused (

a) is making the plea voluntarily; and (

b) understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. (1.2) the failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity theplea. [40] The court has discretion as to whether to permit the withdrawal of a guilty plea.

Furthermore, a judge must be satisfied that itwould be unjust to uphold the plea and that there is a valid defence to the charge, although that defence need to be scrutinized to thesame level as it would be at a Trial. See R. v. Gill, supra at para. 65. [41] What is clear is that the accused bears the burden of proof, on a balance of probabilities, that his guilty plea was notunequivocal, voluntary or informed. [42] Moreover, in order to succeed on an application to withdraw guilty plea on the basis of ineffective assistance of counsel, theapplicant must prove:

a) the underlying facts upon which the claim is based;

b) that representation by counsel fell below the wide range of professional assistance expected from the professional and;

c) that a miscarriage of justice would result. However a quote miscarriage of justice quote “will occur when there is a reasonableprobability or possibility that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See R. v. Yukich, 2017 BCCA 77 at para. 21. [43] Guilty pleas which are entered into provide certainty and finality in the criminal proceedings against an accused.

The court,prosecution and public are entitled to believe that the accused is accepting responsibility for having committed the offence in question.Additionally, an accused’s guilty plea may derive substantial benefits, such as the withdrawal of additional charges and more lenientsentencing recommendations from the Crown. See R. v. Duong, 2006 BCCA at paras. 10 and 11. [44] Whilst there are case authorities for guilty pleas being withdrawn, each case must be critically analysed in light of the factsspecific to the case where the guilty plea was entered. POSITIONS OF THE CROWN AND DEFENCE [45] In

summary, the defence strongly submits that there was a great deal of carelessness on the part of this accused’s formercounsel, and his former articled student acting as a Farsi interpreter, that should cast doubt on whether the guilty plea should be upheld. [46] The defence strongly attacked the credibility of this accused’s former counsel, Mr. Webster, and that of his then articledstudent, Mr. Dadkhah. The Defence alleges that notes were made by Mr. Dadkhah to cover up carelessness in their respective affidavits. [47] The defence further submits there was a language barrier problem between this accused and Mr.

Dadkhah, which he says isfundamental to the accused understanding the nature the charge that was plead guilty to. Within a number of weeks after the guilty pleawas entered on April 19, 2016, the accused began to immediately protest to three other court certified interpreters about his innocence aswell as that to Dr. Dugbartey, Ph.D. [48] The Defence also argues that the inconsistencies between the evidence of Webster and Dadkhah must cast doubt on the validityof the instructions given by the accused to Mr.

Webster. [49] In support of its submission the Defence relied on the following cases all of which I have reviewed in coming to my decision inthis matter: 1. Her Majesty the Queen and Corkum, 1984 ABCA 226; 2. R. v. Santos (1985), (MB CA), 34 Man R (2d) 9 (CA); 3. R. v. Meers (1991), (BC CA), 64 CCC (3d) 221 (BCCA); 4. R. v. Gill, 2014 BCSC 1150; 5. R. v. Quick, 2016 ONTA 95;

6. R. v. L.R.B., 2016 BCPC 172; 7. R. v. Hallam, 2003 BCPC 333 , 2003 BCPC 0333; and 8. R. v. Malaggay, 2015 BCSC 1250. [50] In

summary, the Crown argues firstly that the accused did understand the agreed statement of facts which he signed. [51] Secondly, the “one or more essential elements” of the offence that the accused did not intend on admitting is not identified onthe evidence. [52] Thirdly, the Crown alleges that the accused has not alleged ineffective assistance of counsel. [53] Fourthly, the Crown says even on the accused’s own evidence, that evidence established that he engaged in a relationship withthe victim which: (

a) he provided cigarettes, money, and pills at his sole discretion to feed her addiction and prevent withdrawal sickness; (

b) he knew she was vulnerable and lacking in parental support; (

c) he sought to control her actions using the ruse of a spiritual advisor; (

d) he viewed the victim as a sexual object and offered her inducements to prostitute herself; and that (

e) he tried to manipulate her with guilt. [54] Moreover, the Crown says that the evidence of the accused is simply neither reliable nor credible. [55] As to reliability, the accused admitted himself that he was referred to a physician for professional help regarding hisforgetfulness.

He confirmed his unreliability in viva voce evidence when he admitted that he had difficulty with his memory, difficultyremembering his court appearances and difficulty remembering all the conversations he had in relation to this matter and, importantly,difficulty remembering the meetings he had with his lawyers in relation to this matter. [56] In his evidence before this Court on March 17, 2017 he admits that he is forgetful. Notwithstanding his forgetfulness, he wasclear in relating details he attributes to both Mr. Webster and Mr. Dadkhah. [57] In relation to credibility, the accused’s own admission to Dr.

Dugbartey Ph.D. in his interview with him he conceded that thevictim did perform fellatio on him. This evidence was further corroborated by the evidence of Mr. Dadkhah. However, in the accused’sviva voce evidence in this court, the accused testified that the victim tried to put his penis in her mouth, but he did not let her. [58] There were many other examples where the accused contradicted himself. One involved the denial providing alcohol to thecomplainant but in the report of Dr.

Dugbartey Ph.D. he admitted to purchasing alcohol for the victim and to knowing that thecomplainant consumed alcohol. [59] Crown also alleged that the accused was deceitful to this court as he appeared to downplay his ability to understand and speakboth English and Farsi.

This was demonstrated by the accused repeatedly answering some of the questions put to him by counsel inEnglish before they were translated into Farsi or the accused claim of not understanding the word “guardian” despite using the verywording context in emails to the victim. [60] In support of its submissions the Crown relied on the following authorities which I also reviewed in coming to my decision inthis matter: 1. R. v. Adgey (1975) 2S.C.R. No. 426 (SCC); 2. R. v. T. (R.) (1992) (ON CA), O.J. No 1914 (CA); 3. R. v. Staples, 2007, BCCA 616; 4. R. v. Gill, 2014, 2014 BCSC 1150; 5. R. v. Singh, 2014 BCCA 373; 6.

R. v. Yukich, 2017 BCCA 77; and 7. R. v. Le, 2013 BCCA 455. ANALYSIS [61] I will begin by saying that my overall impressions of this accused when being asked straightforward questions was that hewould often give long- winded answers and would easily go astray from what was being asked of him. He was highly evasive on verysimple matters. On numerous occasions he did not answer simple questions that were put to him which could have easily elicited a yes orno answer. Simply put, I found the accused was a very difficult witness to keep focused on answering a number of specific questionsasked of him.

On several occasions he had to be reminded of that fact and told to answer the question. [62] The arguments that were put forward by the Crown are very compelling on the facts of this case. On the whole evidence I have

both read and heard, I am satisfied this accused clearly understood what he was doing when his guilty plea was entered. The only witness of course who says he did not understand is the accused. It is not for this Court to surmise as to why the accused has decided to change his position in relation to count number 2 on the Indictment post guilty plea on April 19, 2016. Only the accused knows that.

In my view the accused’s credibility was severely challenged and the accused even admitted to being somewhat guilty and agreed to the several text messages put to him by the Crown in cross-examination on his application. [ 63 ] In stark contrast to the accused’s testimony, I have evidence which was not shaken in cross-examination from two officers of this Court, namely the accused’s former counsel Mr. Webster and Mr. Dadkhah, which I accept. Mr. Webster is an extremely experienced criminal defence lawyer.

Furthermore it is my view that both individuals did their best to relate matters from memory when both preparing their affidavits and testifying in court. Both recognized that there were some errors that they made in their affidavits but their explanations given to the court made sense. [ 64 ] Moreover, Mr. Dadkhah made contemporaneous notes of his meetings and telephone contacts with the accused which I accept were not made subsequent to Mr. Dadkhah’s affidavit sworn December 21, 2016. Additionally this accused met Mr.

Dadkhah at a local Persian restaurant earlier this year and apologized to him for taking the position that he, Dadkhah, was not a good Farsi speaking person. It is alleged that the accused decided to challenge the language barrier with Mr. Dadkhah as a means to withdraw his guilty plea. [ 65 ] Mr. Dadkhah, having grown up in Iran and studied law in the Farsi language is, in my view, a completely fluent speaking Farsi person who does not need or use Google translate to assist him given the Farsi language is his native tongue. I accept Mr.

Dadkhah’s evidence that the accused understood him “one hundred percent” when translating legal advice from Mr. Webster to the accused and that the accused understood the full contents of the agreed statement of facts coupled with the one year mandatory minimum jail sentence he would be facing. [ 66 ] Lastly, the accused made further admissions to Dr. Dugbartey Ph.D. in his psychological report which clearly contradicted the accused’s own viva voce evidence in court. Dr. Dugbartey’s

summary and opinion was, in my mind, never seriously challenged by defence counsel. Despite several denials by the accused to several aspects of the agreed statement of facts from the accused, Dr. Dugbartey’s opinion in the end did not change. DECISION [ 67 ] The accused, no doubt, may have many reasons why he wishes his previously entered guilty plea to be set aside. In my view none of them have any merit on the facts of this case. Counsel for the Crown and the accused prior to the guilty plea being entered had secured an agreement by way of a statement of facts that will be relied on at sentencing.

Agreed statement of facts on cases such of these are of tremendous importance. Agreed statement of facts signed by an accused provides assurances to both the Crown and Defence so there are no surprises at sentencing. [ 68 ] I have no doubt that both the Crown counsel, Mr. Weir, and the accused’s former counsel, Mr. Webster, knew the importance of an agreed statement of facts in this case. This is particularly so when there is a mandatory minimum term of imprisonment for the relevant offence. [ 69 ] In my view the guilty plea on the facts of this case was unequivocal.

The accused’s own signature is on the agreed statement of facts which I accept he signed after having it carefully and completely reviewed with him in the Farsi language by Mr. Dadkhah. I have no doubt that he understood the contents contained in the agreed statement of facts and I reject his evidence that he did not understand its contents.

I am also satisfied on the evidence that the accused knew there was a mandatory minimum sentence on Count 2 of twelve months prior to the guilty plea being entered on his behalf. [ 70 ] The accused’s position that his guilty plea should be struck as it did not happen as per the agreed statement of facts holds no merit whatsoever. [ 71 ] After careful consideration of the test required of me, I am completely satisfied that the plea of guilty that was entered on his behalf was completely unequivocal, fully informed and voluntary.

Moreover, I’m also satisfied that there would not be any defence worthy of investigation on the whole of the evidence heard in this application. To the contrary, it would be a miscarriage of justice to allow the accused’s application to succeed. The accused, therefore, ought to be bound to the agreed statement of facts which he signed at sentencing in this matter. [ 72 ] The accused’s application to withdraw the guilty plea to count 2 on Victoria Court File Information #165924-3-C entered on his behalf by counsel in April 19, 2016 is hereby dismissed.

BY THE COURT _____________________________ The Honourable Judge B. Harvey