LAW OF CRIMINAL PROCEDURE
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".
Lanka Private Bus Owners’ Association President says Bus lanes are good but more needs to be done
Mahinda Rajapaksa :I did my best for the CountrySays Constitution allows him to become Prime Minister
- LG and PC polls next year – PM 3571
- Reactions to Suu Kyi’s speech 3586
- Govt to amend 20A 3580
- Arundika crosses over 3544
- PCoI probing bonds issue Mahendran a ‘foreign citizen’ 3901
- COPE Chief centre of contention in the House 3553
- Chairman NATA says: Increase tobacco taxes in line with income 3554
- Marking Anagarika Dharmapala’s 153rd B’day 3536
- Treasury Bonds Probe Examination of Palisena’s evidence ends 3560
- UNHCR says 30 Rohingya in SL No restrictions on Myanmar Visa – Immigration Dept 3559
- No official missive as yet 3566
- Court restricts Pindapatha to outer limits of K’goda town 3739
- If Disappearances Act is ratified in Parliament Eliya will take to the streets with the people 3546
- Suspect dies in Police custody 3537
- US GSP not claimed 3552
- Move to increase High Court Judges 3536
- 5th South Asia-China Friendship Forum 3549
- Toxicity in veggies and rice produced in A’pura 3538
- JO challenges Govt...Respect SC ruling, and have PC elections as planned 3535
- Ahangama gets new market complex 3527
- Chemistry paper leak Tutor & bro allowed bail 3526
- Sam meets heads of Colombo Port’s major client 3530
- Keppapilavu land owners to appeal to top brass 3532
- Why I Won’t Vote Unless Things Change 3582
- Transforming the United Nations:Countering the US Budget-Cut Threats 3526
- Anti-SAITM forces and the rule of law 3050
- The March of Folly Promoting Amity, 15 years late 2820
- These 10 probiotic rich foods are even better than Yoghurt 2744
- OMP: Accountability of a State 2655
- 153rd Birth Anniversary of Anagarika Dharmapala Sinhala Buddhist revivalist par excellence 2640
- It’ll be close - Hamilton warns of Ferrari F1 fight back 3347
- Neymar-Cavani penalty spat a ‘war of egos’ 3349
- British cyclist smashes record 3343
- Tyson Fury urges UK Anti-Doping to reach a decision 3345
- Bangladesh’s Rubel denied entry 3353
- Banned Rooney gets lift to training 3344
- An unforgettable week in Lahore 3343
- Rossi back on bike 3337
- Women’s Asia Rugby Sevens Series 2017 Hong Kong game important 3350
- Nuwara Eliya Junior Open Golf Championship Dhuvarshan takes inaugural boys title Tanya Balasuriya carries girls title 3343
- Big Ivan – Russia’s Bang! 2302
- Sri Lanka is a stable country now 2786
- Heading Hybrid Renewable Energy Lights Up Eluvaithivu Island 2814
- ‘Capacity To Pay’, ‘Ability To Pay’ Govt’s New Rates Question Tax Principles 3631
- Salawa inferno Victims still wait for compensation 3522
- We are making plans to topple the Government 3454
- We will not support the 20th Amendment – Suresh Premachandran 3089
- Lanka Private Bus Owners’ Association President says Bus lanes are good but more needs to be done 2896
- SF’s vitriolic attack on Bhikkhus prompts Ven. Gunawansa’s foray into politics 4016
- Mahinda Rajapaksa:I did my best for the CountrySays Constitution allows him to become Prime Minister 4311
- Crushed by debt and online rivals, Toys ‘R’ Us Seeks Bankruptcy 2646
- ABAF 2017 holds ‘Building a Great Start-up’ preview 2637
- Commercial Bank announces special rentals during 3-month ‘Leasing Vaaré’ 2641
- CIMA President David Stanford in town 2631
- Informal sector continues to be economically significant 2632
- OPPO launches Speedy Operation A71 in SL 2632
- Golden ratio behind data driven businesses 2634
- Office Spaces in Sri Lanka: Things to Know 2633
- TBWA the only SL agency awarded at AD STARS 2630
- ICT legal pioneer Jayantha Fernando honoured 2635
- Executing an Executive order 2717
- What are The Best Laxative Foods? 2527
- YOU CAN’T JUDGE A BOOK BY ITS COVER 3575
- NASA's spacecraft makes death plunge into Saturn 2462
- Latest addition to the iphone family 2464
- best workout songs 1802
- BOUNCE BACK: AN OPEN MIC 1930
- Cosplayer fame 2184
- Astrological clue to the nature of your progeny 2393
- Vasu Defects that Affect Business Places 2383
- Venus the planet of love 2387
- Egypt before Pharaohs: When Gods ruled the Earth 2366
- Omens connected with muscle twitching 2356
- Body of the Text 3056
- Academic approaches to peace building and reconciliation 3070
- Insights into the life of remarkable missionary 3100
- Theatre Critics 3033
- Jaffna International Cinema Festival 2017 (JaffnaICF 2017) 3051
- Grammar through Literature and A Thousand Voiced Choir 3034
- Healing the wounded hearts 3037
- Labour power discourse in cinema 3317
- Animals in thirst 2703
- Enhancing life to the very end 2730
- Hearts break in silence 2711
- Awards for alumni at ‘the best school of all’ 2697
- Blue sky in warm champagne 2687
- A will of steel 2684
- Neural engines: the future of AI 2376
- CLOSING SOME WINDOWS 2372
- Celebrating 23 years 2377
- Dahl’s Twisted, Overlooked Stories for Adults 2360
- Powerful voices and musical talent 2357
- The business of fandom 2371