Change of Plea after verdict but before Sentence (Zimbabwe)
Where an accused applies to withdraw a plea of guilty after he has been convicted but before sentence is passed there is no longer a presumption of innocence. The onus is on the accused to show on a balance of probabilities that his plea was not made knowingly, voluntarily, or correctly. In some cases it may be possible to discharge this onus if the accused's legal representative makes a statement from the bar. In other cases, viva voce evidence by or on behalf of the accused may be necessary. In such cases the judicial officer should conduct the "trial within a trial" procedure, giving the accused and the State the opportunity to adduce evidence. Where an application is made to change the plea to not guilty because the accused now claims innocence, it is permissible for the court to have regard to his statements in order to decide his guilt or innocence: Haruperi 1984 (1) ZLR 258 (H).
Where the accused seeks to withdraw his plea at this stage, the court has the discretion to allow the withdrawal of the plea. This discretion will be exercised very sparingly and only in clear cases.
Sometimes a defence lawyer may have been engaged to represent the accused where he has already pleaded guilty and been found guilty but where sentence has not yet been delivered. In some of these cases the accused may wish to change his plea because the accused alleges that the police forced him to plead guilty because of threats or induced him to plead guilty by falsely informing that he would receive only a light fine if he pleaded guilty. In such cases the lawyer will have to apply for the plea of guilty to be changed to one of not guilty and, if the application is successful, the case would have to start again and the State would be put to the proof of its case. In Jackson HH-201-02 X, together with a colleague, stole a car in Chinhoyi. While driving it away, the accused lost control. His companion was killed; the vehicle was badly damaged. At his trial in a regional magistrates court, X pleaded guilty and was convicted. The matter was referred to the High Court for sentence. Before the hearing, X's legal representative indicated that X wished to change his plea to one of not guilty. The reason given was threats by the police. The question was whether the High Court could remit the matter to the lower court for X to change his plea. It was held that the application to change the plea should be directed to the trial court. Although there is no onus on X - all he must do is offer a reasonable explanation for having pleaded guilty - less is required of him when he applies to the High Court for remittal to change his plea. All he must show is that he has an explanation which prima facie shows that he has a reasonable explanation for a change of plea to give to the trial court.