LAW OF CRIMINAL PROCEDURE

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By 2017-08-18

 By Chandra Tilake Edirisuriya

Other decisions, however, supply authority for the proposition that duplicity of charges is a circumstance which generally deprives the indictment of legal validity, says Prof. G.L. Peiris, the most prolific writer on the laws of Sri Lanka, in his work 'Criminal Procedure in Sri Lanka' that should adorn even a layman's library. In Police Sergeant, Lindula v Stewart (1923) 25 NLR 166, this conclusion was reached without hesitation by Jayawardene AJ.

In Sub Inspector of Police, Dehiowita v Perera (1926) 27 NLR 511 the same Judge declared: "The prosecution should, after a consideration of the evidence available, decide which of the offences under the Section or the By-law the accused appears to have committed, and frame only such charges as appear to be appropriate to the facts which it can prove".

This dictum, it is submitted, correctly sets out the approach which should be adopted by the prosecution to the framing of charges, says Prof. Peiris.

In Edwin Singho v Sub Inspector of Police, Kadawatha(1956) 57 NLR 355, the accused was charged and convicted, on two counts:

(1) having driven a motor bus recklessly or in a dangerous manner or at a dangerous speed, in breach of the Motor Traffic Act, and (2) having driven the same motor bus negligently or without reasonable consideration for other persons using the highway, in breach of the same statute.

The Supreme Court held that these charges, framed in the alternative, were invalid on account of duplicity. Sansoni J observed: "I think this is a case where particulars setting out the details of each offence should have been mentioned in the charge. The need for this was all the greater because the prosecution had evidence of three separate incidents at three different places on the highway and, in fairness to the accused he should have been given further particulars. The failure to do so has, in my opinion, occasioned a failure of justice. As a matter of practice, such particulars are often stated in charges framed in Magistrate's Courts".

This observation is borne out by a scrutiny of the charge in Lourensz v Vairamuttu(1941) 42 NLR 472. The allegation was one of negligent driving, but the particulars provided were that (a) the accused drove the van too fast when approaching the junction of the two roads, (b) he did not keep a proper look-out at this junction, and (c) he drove the van on a prohibited road.

Although the position is established in Sri Lanka that the charges in the alternative are unacceptable, it is necessary to ascertain, before applying this principle, whether duplicity of charges in a given case is real or only apparent, says Prof. Peiris.

Poisons, Opium and Dangerous Drugs Ordinance

In Wijesinghe v Don Martin (1954) 56 NLR 158, the charge against the accused was that he "did, sow, plant or cultivate" hemp plants in breach of the Poisons, Opium and Dangerous Drugs Ordinance. It was held that the charge was not bad for duplicity. The basis of the decision was that the statute created a single offence, whether the act was committed by sowing, planting or cultivating. Swan J stated: "The gravamen of the charge was that one should have anything to do with the prohibited plants without the licence of the proper authority. The manner in which the law has been transgressed is only incidental".

Warlis v Scott (1957) 59 NLR 46 was a similar case. It was held here that a charge of driving recklessly or in a dangerous manner in breach of the Motor Traffic Act was not bad for duplicity. The Court purported to distinguish Edwin Singho v Sub Inspector of Police, Kadawatha where a contrary conclusion was arrived at. L.W. de Silva AJ commented: "I do not think the reasoning of Sansoni J and the cases cited by him apply to the facts of this case. The charge here is in two alternatives connoted by recklessly or in a dangerous manner.

The charge in Edwin Singho's case alleged that the accused drove his vehicle recklessly or in a dangerous manner or at a dangerous speed. It is thus apparent that the accused might have done one of two things without the other, and the view was taken that distinct offences were indicated. The present charge is not open to that objection. Driving recklessly or in a dangerous manner, in my opinion, connotes the commission of one offence in alternate ways. The charge sets out the manner in which the accused drove his vehicle, and there is no uncertainty about it. I am of the opinion that the charge was correctly formed and the accused was rightly convicted".

It is clear, then, that in the two cases of Wijesinghe v Don Martin and Warlis v Scott, the convictions were upheld because the charges were not open to attack on the basis of duplicity. But where duplicity can be shown to characterize the charges, the validity of the indictment is generally vitiated, says Prof. G.L. Peiris.

The case of Wilbert v Newman (1969) 75 NLR 138 concerned a prosecution for the breach of Rule 7(1) of the Forest Rules, No. 2 of 1966, framed under Section 20 (1) of the Forest Ordinance. De Kretser J held that "felling trees" is an offence distinct from "causing trees to be felled", and that the two offences, therefore, should be tried separately. However, it was declared that a charge which is bad for duplicity is not necessarily fatal to a conviction, if it has not caused prejudice to the accused.

The general principle is established that duplicity of charges constitutes a grave irregularity, except in situations where joinder (of charges) is permitted by the law, says Prof. Peiris.

The Code of Criminal Procedure Act No. 15 of 1979 in Section 165 lays down in Sub-section (2) that when the accused is charged with criminal breach of trust or dishonest misappropriation of movable property, it shall be sufficient to specify the gross sum or, as the case may be, the gross quantity in respect of which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 174: Provided that the time included between the first and the last of such dates shall not exceed one year.

The effect of the foregoing provision has been explained by the courts, says Prof. G.L. Peiris.

In de Silva (1963) 66 NLR 72 it was stated per T.S. Fernando J: "The Sub-section removed certain difficulties that confronted the prosecution in a case where there were several misappropriations of money or items of other movable property spread over a period of time". On another occasion the Supreme Court made the following observation: "The effect of the Sub-section is that where, to take one of the offences, for the sake of simplicity, it is alleged that several sums of money had been criminally misappropriated on various dates, it would be competent to aggregate the several sums of money misappropriated within the space of one year and to charge the accused person of having committed the offence of criminal misappropriation in respect of that aggregate sum of money without specifying the particular items or the particular dates on which the amounts may have been misappropriated, and the Sub-section specially enacts that a charge so framed is to be a charge of one offence".

Criminal breach of trust

In Cooray (1951) 53 NLR 73 the accused was charged with committing criminal breach of trust in the way of his business as agent. The charge was that: "Between 1 May 1947 and 30 April 1948 you, being entrusted with a sum of Rs 155,557.93 to be deposited to the credit of the Union (a Cooperative establishment) did commit criminal breach of trust in respect of the said sum". In the course of the trial, the prosecution narrowed down the sum in respect of the charge to Rs 94,976.93 which was the aggregate of not less than twenty cheques. The jury found the accused guilty of criminal breach of trust in respect of "a sum of about Rs 57, 500.

Nagaligam J, in delivering the judgment of the Supreme Court, arrived at two definite conclusions in this regard: (a) the verdict of the jury could not be said to be vague on the ground that it did not specify the exact amount that had been misappropriated and indeed, the jury need not have indicated any sum at all in their verdict; and (b) each of the charges could not be said to be the subject of a separate offence and where the charge of criminal breach of trust has been framed in terms of the legal provision applicable, the gross sum specified in the charge,...... although it is made up of different particular sums,must be regarded as relating to one single offence in respect of the aggregate sum specified and not as constituting several charges or even one charge in respect of several offences.

However, the significance of the proviso to the Sub-section has to be remembered. The period between the first and the last act attributed to the accused cannot exceed one year, says Prof. Peiris.

In de Zylva (1963) 66 NLR 92 the charge was that the accused committed criminal breach of trust "between the seventh day of January 1959 and eighth day of January 1960". It was held that the charge, by taking in a period in excess of a year, turned out to be defective. T.S. Fernando J said: "The period in respect of which the misappropriation of movable property may be so lumped together' cannot exceed one year".

Disregard of the proviso may be of avail as the basis of an objection to the legality of a conviction on the charge. The underlying principle is that "No valid trial could have taken place on an illegal charge, says Prof. Peiris.

In de Zylva's case T.S. Fernando J following Indian authority, endorsed the statement: "To regard the disobedience to an express provision as to a mode of trial as a mere irregularity is not possible. Such a phrase as 'irregularity' is not appropriate to the legality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment".

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