Shawn Le Lay v HM Attorney General

CourtCourt of Appeal
JudgeWilliams JA
Judgment Date15 December 2022
Neutral Citation[2022] JCA 278
Shawn Le Lay
HM Attorney General

[2022] JCA 278


Sir Wyn Williams, President;

Sir William Bailhache K.C., and

Mr Richard McMahon, K.C., Bailiff of Guernsey.


Court of Appeal — application for leave to appeal sentence.


AG v Le Lay [2022] JRC 185.

Mental Health (Jersey) Law 2016.

Le Lay v AG [2022] JCA 195.

Appellant representing himself.

Advocate D. Steenson as Amicus Curiae.

Crown Advocate S. Thomas for the Respondent.

Williams JA

On 8 June 2022, before the Royal Court (Commissioner Clyde-Smith sitting with a jury), the Applicant was convicted of 3 counts of grave and criminal assault and 1 count of causing malicious damage. On 6 September 2022, the Superior Number of the Royal Court (the Commissioner and Jurats Crill, Pitman, Dulake, Austin-Vautier and Thomas) (see AG v Le Lay [2022] JRC 185) sentenced the Applicant to a total term of imprisonment of 5 years and 6 months in respect of these offences which was constructed as follows. For the offence of grave and criminal assault (count 1) a sentence of 3 years imprisonment was imposed; for a second offence of grave and criminal assault (count 2) the sentence was 4 years and 6 months imprisonment; for a third offence of grave and criminal assault (count 3) the sentence was 12 months imprisonment; and for the offence of causing malicious damage (count 4) the sentence was 6 months imprisonment. The sentences imposed for counts 1, 2 and 4 were ordered to be served concurrently; the sentence imposed upon count 3 was ordered to be served consecutively to the other sentences – hence the total term of 5 years and 6 months. Additionally, an order restraining the Applicant from contacting the victims of counts 1 and 2 was imposed upon him for an indefinite period.


On 22 November 2022 the Applicant appeared in person before us to pursue an application for leave to appeal against the prison sentences imposed upon him. (He did not seek leave to appeal against the restraining order). At the conclusion of the hearing we announced that leave to appeal would be granted and that the total sentence imposed on the Applicant would be reduced from 5 years and 6 months imprisonment to a term of 5 years.


This judgment (which is the judgment of the court) provides the reasons why we reached that conclusion and, additionally and where necessary, describes certain procedural issues which arose in advance of and at the hearing before us and the decisions we made upon them.

The Procedural Background

At his trial before the Royal Court, the Applicant represented himself. An Amicus Curiae, Advocate Steenson, was appointed to assist the court. The Crown was represented by Advocate Thomas. The indictment upon which the Applicant was tried contained the 4 counts set out above.


Following his conviction the Applicant sought leave to appeal. That appeal was extant when he appeared before the Superior Number for sentencing on 6 September 2022. We describe below some of the events which occurred on 6 September prior to the Applicant being sentenced.


By Notice of Appeal dated 8 September 2022 the Applicant sought the leave of this court to appeal against the sentences imposed upon him as described above. No grounds of appeal were set out in or attached to the Notice of Appeal although the Applicant did mention that he was seeking the leave of the Court of Appeal to appeal against his convictions and that his application for leave was due to be heard 21 September 2022.


On 13 September 2022 the Applicant applied for leave to call further evidence in support of his appeal against sentence. In summary, the Applicant sought leave to call as witnesses the Commissioner and Jurats who had been involved in his sentencing. No proper reason was given as to why the Commissioner and Jurats should be called as witnesses.


On 21 September 2022, this Court (Clare Montgomery KC, President, Jonathan Crow KC and James Wolffe KC) refused an application by the Applicant for leave to appeal against his convictions. The following day the Court provided a written judgment explaining its reasons for refusing leave.


On 30 September 2022, under the authority of the Judicial Greffe, the Applicant was informed that his application for leave to appeal sentence would be listed before us in the week commencing 21 November 2022. He was also directed to file written contentions in support of his application for leave to appeal by 12 noon 19 October 2022. The Applicant did not comply with that direction; indeed he has never filed any written contentions in support of his application for leave.


On a date between 6 September and 2 October 2022 the Applicant applied for legal aid to be represented by an advocate at his application for leave. However, by the time the Applicant made his application Advocate Steenson had already been appointed as Amicus Curiae in relation to the Applicant's appeals against conviction and sentence. In the light of that appointment, the application for legal aid was refused.


In the few weeks preceding 22 November 2022, Advocate Steenson attempted to discuss with the Applicant the basis upon which he wished to pursue an appeal against sentence. The Applicant was not prepared to speak with Advocate Steenson face to face although he did have at least one telephone conversation with the Applicant in which potential grounds of appeal were discussed.


During the course of his attempts to speak to the Applicant, Advocate Steenson formed the view that the Applicant might be unwell and that, accordingly, an adjournment of the application for leave should be considered. That view was communicated to us. In the event we decided that the application for leave should be heard on 22 November 2022 unless we were provided with medical evidence to the effect that the Applicant was too unwell to attend the hearing either in person or remotely. No medical evidence was adduced before us and the Applicant appeared at court.


At the start of the proceedings the Applicant made two applications which we should record in this judgment. First, he argued that Sir William Bailhache should recuse himself from sitting as part of the constitution of the court because Sir William had previously sat in the Royal Court upon an appeal brought by the Applicant and that on unspecified occasions there had been contact and/or communications between the Applicant and Sir William. Second, that the appeal should not proceed without Ms Patricia Winchester, of My Voice, Jersey, being present to offer support and guidance to the Applicant. She is well known to the Court as a provider of support to vulnerable witnesses and Defendants who suffer from problems with their mental health and she supported the Applicant at his trial and during the application for leave to appeal his convictions.


The application that Sir William should recuse himself was without merit. We ascertained that in 2012 Sir William did indeed preside over an appeal brought to the Royal Court by the Applicant in which he was successful. No details were forthcoming from the Applicant about other occasions when there had been contact with Sir William or what that contact was about. We were quite satisfied that a fair minded and informed observer would not conclude that there was a reasonable possibility that Sir William would be biased and, accordingly, the Applicant was informed that Sir William would continue to sit as part of the constitution of the Court.


Over a period of some 15 or 20 minutes both the Court and Advocate Steenson attempted to contact Ms Winchester but to no avail. We informed the Applicant that Ms Winchester could not be contacted but we invited him to continue with his appeal nonetheless. The Applicant acceded to our request and began explaining the basis upon which he wished to pursue his appeal – as to which see paragraph 28 below.

The Offences for which the Applicant was sentenced

At the material time the Applicant was aged 51 and he was living in a flat which was one of a number within a block. The flat next door was occupied by the caretaker of the block, a man aged 62, and his wife aged 54. In this judgment we shall refer to them (as did the Commissioner in the sentencing judgment of the Royal Court) as the First and Second Complainants. There had been tension between the Applicant and the First Complainant for some time prior to August 2021.


On 6 August 2021 the Applicant received a letter from the property manager of the block informing him that he was going to be evicted from his flat. Upon receipt of the letter the Applicant went to speak to the First Complainant, apparently to obtain from him the property manager's contact details. However, when the First Complainant refused to provide the details (having been prohibited from providing them by his employers) the Applicant lost his temper. He began shouting at the First Complainant and then he punched him to the left side of his head. The Applicant is and was much larger and stronger than the First Complainant. Understandably, therefore, the First Complainant was fearful for his safety especially since he had undergone heart surgery some time previously. Accordingly, he took up a riding crop in order to defend himself. The Applicant's reaction was to push the First Complainant down onto a sofa, grab the riding crop and then strike the First Complainant a number...

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