[COURT OF CRIMINAL APPEAL]

1951 Present.- Gratiaen J. (President), Gunasekara J.

and Pulle J.

SITTAMPALAM et al., Petitioners, and THE KING, Respondent

APPLICATIONS 28 AND 29 OF 1951

S. C. 23-M. C. Point Pedro, 13,520

Court of Criminal Appeal-Trial-Plea Plea of (guilty of lesser offence--Circumstances when it will be accepted or rejected-Sentence-Alteration of illegal sentence.

The following is the correct procedure to be adopted when an accused person who had previously pleaded not guilty seeks, after his trial has commenced before a jury empanelled for the purpose, to retract his earlier plea and to tender an unqualified admission that he is guilty of some lesser offence on which a verdict against him may properly be recorded without an amendment to the indictment: -

(1) if the Crown is not prepared to accept the plea of guilt in respect of the lesser offence, the case against the accused should proceed on the whole indictment;

(2) if, on the other hand, the Crown intimates its willingness to accept the plea the presiding Judge must himself decide whether, upon the evidence so far recorded and upon the depositions recorded by the committing Magistrate, it would be in the interests of justice for the Court to accept the plea;

(3) if the presiding Judge, notwithstanding the Crown's willingness to accept the plea, decides that it should not be accepted by the Court, the case against the accused must proceed on the whole indictment;

(4) if, on the other hand, the Judge considers that the plea may properly... be accepted by the Court, he should invite the jury, in whose charge the . accused has been given after they were empanelled to try the case, to state whether they would accept the plea; and the Judge ,may inform the jury at this stage of the reasons why acceptance of the plea is recommended by him;

(5) if the jury state that they are willing to return a verdict on that basis, the unqualified admission of guilt of the accused should, if this has not been already done, be recorded in the presence of the Judge and jury ; this admission becomes additional evidence oh which the jury may act, and they should then be directed to pronounce' a verdict accordingly.

Held, further, that when a sentence passed on an accused exceeds the maximum which the law authorises, the Court of Criminal Appeal has power to substitute a legal sentence when dealing with the application for leave to appeal.

APPLICATIONS made by two prisoners for leave to appeal against their convictions and sentences.

M. M. Kumarakulasingham, for the accused appellants.

T. S. Fernando, Crown Counsel, with H. A. Wijemanne, Crown Counsel) for the Attorney-General.

Cur. adv. vult.

 May 8, 1951. GRATIAEN J.-

The first petitioner was indicted at the Jaffna Assizes for the murder of Thamotharampillai  Selvakulasingham, and the second petitioner was indicted in the same proceedings for the abetment of the commission of this offence. Both petitioners pleaded " not guilty ", and a jury was duly empanelled to try the case.

After three witnesses for the prosecution had given evidence, but before the case for the Crown had been closed, counsel for the defence requested permission to make a submission to the learned presiding Judge in the absence of the jury. The jury then retired, and counsel for the defence informed the Judge that the 1st petitioner was willing, on his advice, to tender a plea of guilt on the lesser count of culpable homicide not amounting to murder, and that the 2nd petitioner was similarly prepared to tender a plea on the lesser count of abetment of culpable homicide not amounting to murder. What took place thereafter is recorded as follows : -

Court : What do you say, Mr. Crown Counsel ?

Crown Counsel : It is a matter for the jury.

Court : Do you have any objection to my putting it to the jury ?

Crown Counsel : No ".

We infer from the shorthand note of the proceeding