Court allows change of guilty plea to not guilty when new charge creates inconsistency and justice requires it.

[*318] 1982 Jan. 16

(ELIADES, D.J.)

IN THE DISTRICT COURT OF LARNACA Police, v.

Jeannette Hagopian,

(Accused)

(Case No. 4547/81).

Criminal Procedure - Summary trial - Plea - Change of plea from "plea of not guilty" to "plea of guilty" Discretion of the Court - Principles applicable.

C. Papageorghiou , for the prosecution.

S. Poetis (Mrs.), for the accused.

RULING

The following ruling was delivered by:-

ELIADES,D. J, : Objection has been raised[*319]

by the Prosecution to an application by the Defense to have the plea of guilty of accused charged into one of not guilty, after accused had pleaded guilty but before facts were adduced by the Prosecution as to the details of the offence for sentence to be passed.

The salient facts of this case are that on the 21.9.81 accused pleaded guilty to a charge of operating serviceflats without a permit contrary to sections 2,17 and 23(a)(c) of Law 4O/69. When the case came up for hearing on the 23-I0.81 the Prosecution applied for leave to add a second count charging accused for non-compliance with the relevant terms of her license for operating a Tourist office contrary to section 2,3,49(i) of Law 5/80. when leave was granted, accused was charged and pleaded guilty to the charge.

Learned counsel appearing for accused asked for an adjournment in order to get instructions from his client on the facts to be put before the Court in mitigation, concerning count 2.

The Court found the application as justified and adjourned the case for sentence, requesting the Defence to re consider its position as to a possible inconsistency on the two pleas in view of the wording of the relevant charges.

On the date the case was fixed for sentence counsel for accused submitted an application for the change of plea of guilty into one of not guilty, as after careful consideration of the facts which were given to him by accused by way of instructions he arrived at the

conclusion[*320]that they could not substantiate the ingredients of the offence to which accused had already pleaded guilty. The Prosecution objected to the application, as accused was properly represented at the time and she ought to take the consequences of her act.

When an accused person is called upon to plead, he may enter one of the three pleas envisaged by the Criminal Procedure Law Cap.. 155, namely a plea of guilty, a plea of not guilty or a special plea.

Unless the accused raises a special plea, (as this is provided by sec. 69 of the same law) he must enter a plea of guilty (if he admits the charge) or a plea of not guilty (if he does not admit the charge).

The ability of an accused person to plead is a necessary requirement and great care must be taken in ascertaining whether the accused is capable to understand properly the charge preferred against him, and there may be cases where suspicions may be. entertained as to the existence: of such an ability.

As it was said by Widgeny J./R. v. Blandford Justices 1966 I All E.R. p. 1021:

"In every instance when a magistrate receives the reply ’Guilty' to the common form question asking the accused to plead, it is necessary for the magistrate to consider whether it is safe to accept the plea and to enter a conviction. Of course in many cases the question is not a difficult one. If the accused is[*321] represented, if the accused is a man of mature years who clearly understands what is being put to him, it may well be that the magistrate can accept the plea in the sense that he can regard it as being a satisfactory plea on which he can safely act without further enquiries. In cases, however, where the accused is not represented or where the accused is of tender age or for any other reasons there must necessarily be doubts as to his ability finally to decide whether he is guilty or not, the magistrate ought, in my judgment, to accept a plea as it were provisionally, and not at that stage enter a conviction. He ought in my judg ment, in these cases to defer a final acceptance of the plea until he has had a chance to learn a little bit more about it, and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading it one"

In summary proceeding as well as in cases tried on information an accused person may apply at any time before sentence to change his plea of guilty. The Court's jurisdiction to entertain a change of plea is not a statutory one but is based

on the inherent jurisdiction of any Court to see that justice is done. (See R. v. Mutford Justices(1971) I All E.R. p. 85).

When an accused person, who desires to change his. plea of guilty Into one of not guilty, has pleaded facts from which the Court can see that there is no question of mistake, the Court is not bound to allow him to withdraw his plea But a change of plea may be allowed where there is a[*322]question of misunderstanding or mistake or where it wouldbe desirable on any ground that the accused should be allowed to follow such a course. (See R. v. McNally(1954) - 2 C.L.R. p. 372). But a

change of plea may not be permitted after sentence has been passed. (See R. v. Campbell, Ex Parte Hoy (1953) I -All E.R.

p. 684),

The principle enunciate that what was needed to constitute a conviction on a plea of guilty at a summary trial was the acceptance by the Court of the plea, it being an unequivocal plea of guilty (R. v. Guest (1964) 3 All E.R.- P.385) was later overruled when it was held that in summary proceedings as in cases tried on information, the, accused may, at any time before sentence, apply to change his plea of guilty and it is for the Court to decide whether justice requires that should be permitted. (See J. An Infant) v. Machester City Recorders and Others 1969)3 All E.R. p.I230).

Lord MacDermott had no doubt, that such, a right could also be exercised in Courts of summary jurisdiction; "As respect trials on indictment, including trials before "justices at quarter sessions, the attitude at 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 seisin of the proceedings". (See J. (An Infant)v.[*323] Manchester City Records and Others Supra).

The right to change a plea of guilty to one of not guilty is so extensive that it was given even by way of appeal in a conspiracy case where it was held that on a joint indictment for conspiracy, if one accused pleads guilty and sentence is passed upon him, but his co-accused is later acquitted, the accused who pleaded guilty ought also to be allowed to withdraw his plea and ought also to be acquitted. (R. v. Plummer (1900- 1903)All E.R. Reprint p. 613).

Such a right was later affirmed in R. v. Shannon ((1974) 2 All E.R. p. 1009) where the question was reconsidered by the House of Lords where it was decided that leave to appeal from the Court of Appeal to the House of Lords was properly granted in spite of a previous plea of guilty.

I have considered very carefully the evidence before me and I cannot loose sight of the fact that counsel for accused applied as soon as the second charge was added and accused pleaded guilty when charged, for an adjournment to examine the new situation. An important factor which cannot but have a strong bearing on the application is the request by the Judge who allowed the addition of the new charge to counsel for accused' to reconsider the position of his client in view of a possible inconsistency between the two charges. This could indicate that the accused was taken unprepared and by surprise when charged on the new[*324]count and her plea of guilty was given spontaneously without serious consideration.

The mere fact that accused was legally represented does not mean that the Court cannot exercise its discretion to allow a change of plea. (See P. Foster (Haklage) Ltd, v. Roberts (1978)2 All E.R. p. 751).

Considering all the above I have come to the conclusion that a change of plea is justified and the application of accused is hereby allowed. Accordingly a plea of not guilty is entered on count. 2.

Application to change plea granted.