Court grants leave to change guilty plea to not guilty before sentencing based on inherent jurisdiction.

[*194] 1982 Jan. 2

(S. NICOLAIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Improvement Board of Ay. Dhometios,

v.

Maria Chr, strati and Another,

Accused.

(Criminal Case No. 19509/30).

Criminal Procedure - Plea - Change of Plea - Principles applicable.

E. Odysseos with D. Ioulianou (Mrs.), for the Prosecution.

P. Frakalas, for the Accused.

RULING

The following ruling was delivered by;-

S. NICOLAIDES, D.J.;- This is an application[*195] by counsel for accused for leave of the court so that accused change their plea from guilty to not guilty.The history of the case is as follows:-

On 6.12.80 the accused appeared unrepresented and pleaded to the charge "not guilty". The case was then fixed for hearing on 26.2.81. On this date accused appeared with a counsel and the hearing was adjourned to 7.5.81. On this date another counsel appeared for the accused and leave of the court was sought so that accused change their plea to one of guilty; leave was granted and accused, were recharged and pleaded "guilty". The case was further adjour­ned to 27.6.81 for facts and sentence; on this date accused appeared unrepresented and applied for another adjournment putting forward as reason "as our application is under consideration"; there was no objection to this application and again the case was fixed for facts and sentence to 3.9.81.

On 3.9.81 an adjournment was prayed on behalf of the prosecution as the counsel who was handling the case was abroad and the application was considered welcomed by the defence; the case fixed for the same purpose to 3.10.81.

On this date Mr. Frakalas, counsel for accused intimated that he intended to apply for leave of the court so that accused be permitted to Change their plea to one of "not guilty".

Mr. Odysseos appearing for the prosecution [*196] Intimated that he would object to such an application and the case was fixed on 20.1Q.81. On this date both counsel applied for a short adjournment and was granted by the court. The case was fixed on 4.11.81 on which a formal application was made on behalf of the accused and argument was advanced by both sides.

Mr. Frakalas argued that an accused person may change his plea before sentence whether that be one of guilty or not guilty. He referred to a number of authori­ties which all of them deal with the situation where the accused please guilty and put facts before the court inconsistent with such plea therefore a plea of not guilty should be entered. His allegation is that the plea was changed due to a misunderstanding with other counsel.

Mr. Odysseos argued that once a plea of guilty has been entered if that plea is unequivocal

- guilty -then the court can refuse to permit a change of plea. He referred to certain authorities to support this view.

It is pertinent here to say that no evidence was called by any side, either on behalf of accused to substantiate the allegation of a misunderstanding with counsel or by prosecution to negative it and to establish that the plea was unequivocal. Therefore, it becomes necessary to look at the particulars of the charge-sheet which reads as follows:-

"Οι κατηγορούμενοι μεταξύ 6.6.80 και 27.8.80 και εις ημερομηνίαν άγνωστον εις την Κατηγορούσαν [*197]

Αρχήν εις την επαρχίαν Λευκωσίας χρησιμοποιούν τα υποστατικά τα κείμενα κατά

την οδόν Βασιλέως Παύλου αρ. 62 εντός της περιοχής Βελτιώσεως Αγ. Δομετίου κατά παράβασιν των όρων της υπ’ αρ. Ε.14112

ημερομηνίας 20.8.79 αδείας οικοδομής εκδοθείσης υπό της Αρμοδίας Αρχής

Αγ.Δομετίου. “

Even though the particulars of the offence are well drafted still do not expressly state what the contra­vention actually is, this create doubts whether the accused had a clear picture as to the nature of the charge. Considering the matter further

1 have mind what-was said by Lord Parker C.J. in R.V.Mutford and LotHingland Justices ex parte, Harper, (1971) 1 All E.R." p.81 at p. 82:-

"In the recent case in the House of Lords,S.(an infant) v. Manchester City Recorder (1969) 3 All E. "R.I230 it was held that in trials before justices, just as in the case of trials before quarter sessions or assizes, the court has jurisdiction to entertain a change of plea, and, I would add, anequivocal plea at any time until there is a final adjudication, i.e. until there has been a conviction in the broad sense of a finding of guilty or admission of guilt followed by sentence."

In S.(an infant) v, Manchester City Recorder (1969) 3 All E.R. 1230 at p. 1236, Lord Macdermott said:-

"As respects trial on indictment, including trials before justices at quarter sessions, [*198] the attitude of the common law on this matter has been clear for generations. Such a change may, at the discretion of the court, be allowed at any time before the case has been disposed of by sentence. On principle, I see no reason why this discretionary power should be denied to courts of summary jurisdiction. It is as necessary there as elsewhere if the justices are to be free to do justice while they have session of the proceedings."

In R.v.Mutford Justices, supra,Lord Parker C.J. in his judgment at p.85 refers to a passage from the judgment of Wright J. in R.v. Plummer (I902) KB 339 on this point:-

"Another point is raised in this case, namely, whether the Court had power to allow the appellant to withdraw his plea of guilty. There cannot be any doubt that the court had such power at any time before, though not after judgment…………”

In Loizou & Pikis Criminal Procedure in Cyprus at p. 87 under the heading Change of Plea one reads:-

"The Court has inherent power, at any stage of the proceedings before sentence, to entertain a change of plea. This jurisdiction emanates from the inherent jurisdiction of the court to see that justice is done."

Also bearing in mind the provisions of Article 12, para 4 of our Constitutions and What is stated by [*199]

Manesis

" Συνταγματικό Δίκαιο", σελ. 203, παράγραφος 1 με επικαιφαλίδα “η ερμηνεία

του Συντάγματος”:

"Ενδέχεται, επίσης, από το συγκεκριμένο ισχύον

δίκαιο θα θεσπίζονται άμεσα ή να συνάγονται έμμεσα ορισμένοι ερμηνευτικοί

κανόνες ή αρχές, όπως είναι π.χ., οι κανόνες κατά τους οποίους, σε περίπτωση

αμφιβολίας, η ερμηνεία πρέπει να κλίνει αντίστοιχα: υπέρ του εναγομένου (‘in dubio pro reo’)

στο δικονομικό δίκαιο υπέρ της

ελευθερίας (‘in dubio pro mitiore’) στο ποινικό δίκαιο υπέρ της ελευθερίας (‘in dubio pro libertate’)

στο συνταγματικό δίκαιο."

Και στην σελ.204:-

“Επίσης η

διάταξη του άρθρου 5(3) του Συντάγματος (Η προσωπική ελευθερία είναι

απαραβίαστος, ουδείς καταδιώκεται, συλλαμβάνεται, φυλακίζεται ή άλλως πως

περιορίζεται ει μη όταν και όπως ο νόμος ορίζη) που είναι και αυτή θεμελιώδης

(αρθ. 110(1) καθιερώνει τον ερμηνευτικό κανόνα ότι ‘όσα ο νόμος δεν απαγορεύει,

επιτρέπονται.’”

Having in mind the above I have come to the conclusion that I would exercise my discretion in favour of the accused in the proper administration of justice end I shall grant leave to the accused to change their plea again.

Concluding I have to comment on the course adopted by the accused and their counsel so far and say[*200]that the adjournments prayed for and granted protracting these proceedings amount to my mind an abuse of the process of the court and this application should have been made the soonest possible opportunity.

Leave to change plea granted.