Court refused withdrawal of second count where evidence supported the offence despite guilty plea on first.

[*109] 1972 May 2

IN THE DISTRICT COURT OP FAMAGUSTA

Police,

v.

Nicos Haralambou Tterla,

Accused.,

(Case No. 8993/71).

Criminal Procedure - Charge - Withdrawal before verdict - At the discretion of the Court - Considerations upon which such discretion is exercised - Guiding principle the protection of the interests of justice – Application to withdraw one out of two counts after hearing main prosecution witnesses - Evidence before Court tending to support commission of offence set out in the charge - Application refused - Criminal Procedure Law, Cap. 155, section 91.

Charge - Withdrawal before verdict - See, also, under "Criminal Procedure".

Police Sergeant Ioannides, for the Prosecution.

Antonios Michaelides, for the Accused.

RULING

The following ruling was delivered by: -

PIKIS, D.J.: Section 91 of the Criminal [*110] Procedure Law, Cap. 1 55 confers jurisdiction to the Court to allow the prosecutor to withdraw the charge before verdict provided the Court is satisfied that there are sufficient grounds for permitting this course. This section in essence reproduces, in statutory form, traditional power of the Court to control proceedings before it. The discretion must be exercised judicially in the interests of justice, and cannot be made the subject matter of a bargain between the prosecution and the defence. See R.v. Bedwellty Justices. Ex-Parte Munday. 1970 Crim. L.R, page 601, a decision of the English Divisional Court. In this decision, it was recognised that the Court may, in a proper case, require the prosecutor to present the evidence against the accused. A Court of law will not normally allow convenience to impede the course of justice. The discretion of the Court, wide though it is, it is not unfettered and cannot be exercised at will. A convenient end of the proceedings is not one of the factors that should be allowed to influence the exercise of the Court's discretion. The withdrawal of the charge may be allowed where there is no evidence to support the charge as well as in the case where leave is applied to withdraw a charge so as to avoid any element of oppression, that may be suffered, because of this big number of charges simultaneously pressed against the accused. (See Ioannis Solomon Akritas v. Regina 20(1) C.L.R. 110 regarding the undesirability of joining many counts in one charge). The Court will readily exercise its discretion in favour of withdrawal, where the evidence as shaped in the course of trial, does not support one of two alternative counts; in that event leave will be granted to withdraw one of the alternative counts. [*111]

Where the hearing starts and evidence has been heard, the main consideration upon which the discretion of the Court is exercised is whether the evidence is so unworthy that cannot possibly support the charge; otherwise, the Court would be turning a blind eye to illegality. The Court will not, of course, before the conclusion of the proceedings, and in any event before the close of the case for the prosecution, pause and evaluate the evidence. There may be cases, however, where the evidence is so weak, or so evidently discarded that the Court can say with confidence that the evidence cannot possibly support, the charge, I must not be taken as purporting to define in detail the circumstances under which the Court may allow the withdrawal of a charge. As already stated this discretion is wide and the only guiding principle is the protection of the interests of justice.

In the present case accused is charged on two counts viz. defilement of a woman by false pretences and secondly obtaining food and lodging by false pretences. After hearing the main witnesses for the prosecution, the accused, with the leave of the Court changed his plea on count 1 to one of guilty. Upon this the prosecution applied for leave to withdraw the second count. Even though the same false pretences are relied, upon to support both charges the two offences are separate and distinct. There is evidence before the Court tending to support the commission of the offence set out in count 2. I do not consider such evidence to be so unworthy as to say at this stage that it may be discarded. The weight to be attached to such evidence will [*112] surely arise at a subsequent stage of the proceedings. I am not prepared in the light of the above and the evidence before the Court to accede to the application for leave to withdraw count 2.

In consequence, application for leave to withdraw the offence in count 2 of the charge is refused.

Order accordingly