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Iwari, Regina v [1964] PNGLR 175 (18 April 1963)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 175 - Regina v Iwari

[1964] PNGLR 175

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

IWARI

Mendi

Smithers J

18 April 1963

CRIMINAL LAW - Trial - Application for leave to change plea of not guilty by adding plea of guilty to lesser offence - Discretion of court - Criminal Code Section 598[cxxix]¹.

When the trial has proceeded to a stage at which the accused has been given in charge of the jury (or of the judge where he constitutes the tribunal of fact) a change of plea adding a plea of guilty to a lesser offence can only be achieved with the leave of the Court. R. v. Soanes[cxxx]², discussed.

Semble:

An accused person when called upon to plead to the indictment may with the consent of the Crown and without leave of the Court plead guilty pursuant to Section 5981 of the Criminal Code to any lesser offence of which he might be convicted upon the indictment.

Indictment:

The relevant facts appear in the judgment hereunder.

Counsel:

Bowen, for the Crown.

Germain, for the Accused.

SMITHERS J:  In this case the prisoner is presented on the charge that with intent to do grievous bodily harm he did wound one Deami.

The accused pleaded not guilty.

The Crown case against Iwari, depending upon the evidence of the village constable, has closed. The accused has elected to give evidence and is in the course of being cross-examined.

At this stage, I have been informed by the prosecutor that the prisoner is willing to plead guilty to a charge of unlawful wounding and that the Crown is willing to accept such a plea. I have indicated that I considered that the proper course was for the prisoner to make an application for leave to amend his plea accordingly. Mr Germain, for the prisoner, has made application to me accordingly.

I do not think I should accede to it.

It appearing that there is some doubt as to the procedure and the duty and power of the Court in a matter of this kind, I desire to say that the amendment of the plea at this stage is a matter completely in the discretion of the Court.

When the trial commenced the accused might, with the consent of the Crown, have pleaded guilty to any offence not being that with which he was charged, provided it was an offence of which he might be convicted. See Section 598[cxxxi]³. At that stage it seems to me that the matter was entirely one as between the Crown and the accused. However, when the prisoner has pleaded and has been put “in charge of a jury” on the general issue, it does not rest with the Crown and prisoner to secure his conviction or discharge otherwise than by the verdict of the jury. See R. v. Heyes[cxxxii]⁴, R. v. Hancock[cxxxiii]⁵.

Authority indicates that it is not inconsistent with this that the prisoner should in proper circumstances be permitted to change his plea from not guilty to guilty or from guilty to not guilty. It is nevertheless clear that whether or not such a change should be permitted is a matter in the discretion of the Judge.

There is clear authority in R. v. Plummer[cxxxiv]⁶ that the Court has power to allow the accused to withdraw his plea of guilty at any time before but not after judgment.

The Criminal Justice Administration Act 1914 (4 and 5 Geo. 5. Chapter 58) Section 39 permits the prisoner to plead not guilty of the offence charged in the indictment but guilty to another offence of which he might be convicted on that indictment, but notwithstanding this there is strong authority for the view that, at least when the prisoner is in charge of the jury, it is within the discretion of the Judge as to whether a prisoner who has pleaded not guilty to the offence charged should be permitted to change his plea by adding a plea of guilty to some other offence. In R. v Soanes[cxxxv]⁷ it does not appear that the Court was considering a change of plea. The remarks of Goddard, C.J. with whom sat Humphreys and Birkett, JJ seem to be directed to a situation arising out of a proposed plea in accordance with the privilege conferred on the prisoner under the Criminal Justice Administration Act.

The substantial point is perhaps not so much whether the prisoner should be allowed to change his plea of not guilty by adding a plea of guilty to a lesser offence, but whether the Crown is then free to accept such a plea without the leave of the Court.

As to this the Court in Soanes’ case said:

“When the applicant had been given in charge of the jury, her counsel informed the judge that she was willing to plead guilty to infanticide, and counsel for the Crown expressed his willingness to accept that plea. The judge refused to accept it, and said that the charge was one of murder and that charge must be tried, although, of course, it would be for the jury to say whether the verdict should be guilty of murder or guilty of infanticide. The judge’s reason for refusing to accept a plea of infanticide was that he could find no indication on the depositions that the circumstances existed which must exist before a verdict of infanticide, as distinct from one of murder, can be returned. While it is impossible to lay down a hard and fast rule in any class of case as to when a plea for a lesser offence should be accepted by counsel for the Crown - and it must always be in the discretion of the judge whether he will accept it - in the opinion of the court, where nothing appears on the depositions which can be said to reduce the crime from the more serious offence charged to some lesser offence for which, under statute, a verdict may be returned, the duty of counsel for the Crown would be to present the offence charged in the indictment, leaving it as a matter for the jury, if they see fit in the exercise of their undoubted prerogative, to find the lesser verdict. In this case we think that the learned judge was not only right, but, indeed, bound, to insist on the applicant being tried for murder. There was nothing disclosed on the depositions which would have justified a reduction of the charge from murder to infanticide, and, accordingly, this application is refused.”

Reference may also be made to R. v. Tonks and Goss[cxxxvi]⁸ .

It is my opinion therefore that when the trial is at the stage at which the prisoner is “in charge of the jury,” a change of plea adding a plea of guilty to a lesser charge can be achieved only with the leave of the Court. In this case the prisoner is very much in my (the jury’s) charge as the Crown case is closed and the accused has completed his evidence-in-chief and is in the course of being cross-examined.

Although it may be that on a consideration of the evidence a conviction for the lesser offence may result, the evidence at this stage seems to me to be such as to point to a real probability that it will lead to a conviction of the offence charged. I therefore exercise my discretion against the application for leave to change the plea.

Application for leave to change plea refused.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

(Note: The accused was found not guilty of wounding with intent to do grievous bodily harm but guilty of unlawfully wounding.-Ed.)

[cxxix](1948) 32 Cr. App. R. 136; 1 All E.R. 289.

[cxxx](1948) 32 Cr. App. R. 136; 1 All E.R. 289.

[cxxxi](1948) 32 Cr. App. R. 136; 1 All E.R. 289.

[cxxxii](1951) 1 K.B. 29.

[cxxxiii](1931) 23 C.A.R. 16.

[cxxxiv](1902) 2 K.B. 339.

[cxxxv](1948) 32 Cr. App. R. 136; 1 All. E.R. 289.

[cxxxvi](1963) V.R./21.