Know Your Law LAW OF CRIMINAL PROCEDURE Part XIX Joinder of Charges II

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By 2017-10-13

By Chandra Tilake Edirisuriya

It was held in the case of Bandara v Inspector of Police, Padukka (1960) 62 NLR 73 per Basnayake CJ involving a joinder of charges, that the Court generally begins by stating the rule and inquiring whether the joinder in the particular case is sanctioned by one or more of the legally recognized exceptions.

In construing the general principle that, for every distinct offence of which any person is accused, there must be a separate charge, it has been held in Sunderam (1943) 44 NLR 227, per Hearne J that the phrase 'distinct offences' includes offences committed on different occasions even though they may fall under the same penal provision.

The scope of the phrase 'distinct offence' has been further explained in the case law, says Prof. G.L. Peiris in his work Criminal Procedure in Sri Lanka that should adorn the library of even a layman interested in the administration of justice.

In Attorney General v Munasinghe (1967) 70 NLR 241, per Tennekoon J it was held: "In a case of murder, where A, B and C are alleged to have committed one and the same murder of, say, X, it would be legitimate to charge A, B and C with having committed the murder of X in one charge, because they are accused of one offence and not of distinct offences. But, necessarily, there is implicit in a charge so drafted three distinct charges – one against A, one against B, and the case against the other two fails. A may be acquitted, while B and C are convicted. This is possible only because there is impliedly a separate charge against each one of the several persons accused of committing the one offence." The case contemplated here is one in which several charges relating not to distinct offences but to one offence are brought against a number of accused persons, says Prof. G.L. Peiris.

Six distinct exceptions to the general rule already formulated are set out in the Code of Criminal Procedure Act No 15 of 1979.

Each of these exceptions warrants separate examination: (a) offences of the same kind committed within one year: The law provides that "When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, he may be charged with and tried at one trial for any number of them not exceeding three and in trials before the High Court or a District Court, such charges may be included in one and the same indictment."

Offences of the same kind

The explanation is made that '"Offences are of the same kind when they are punishable with the same amount of punishment under the same Section of the Penal Code or any special or local law."

It is necessary to inquire first whether a series of distinct offences has been joined in the indictment for, it is only if this question is answered in the affirmative that the need arises to ascertain whether the joinder is permitted by the relevant provision of law.

In several cases it has been held that no problem as to joinder of charges arises, because, upon a proper construction of the charge, one offence only has been alleged, says Prof. G.L. Peiris.

Thus, the view has been taken in Fernando (1908) 2 Leader LR 81, that, where a servant receives for his employer a number of sums from different persons and has to account for them all, but in fact accounts for only a part of the total sum and misappropriates the rest, the misappropriation alleged is one offence and not several.

In Yogaguru v. Kanidah (1968) 71 NLR 238, the accused was charged with having "concealed or harboured" a person who entered Ceylon, in contravention of the provisions of the Immigrants and Emigrants Act. The question which arose for decision was whether the words "Concealed or harboured," in the relevant context, created two distinct offences; for, if two distinct offences had been alleged, the law requires that, in respect of each distinct offence, there should be a separate charge, except in the cases specifically enumerated as exceptions.

The Supreme Court held in this case that these words, in the context envisaged involved a single act and not two distinct and separate acts. Panditha Gunawardene J observed: "The gravamen of the charge under this Section can be rightly said to be one of 'keeping away.' It would appear to me that the words 'conceal' and 'harbour' are used adjectively to describe more fully the one act complained of."

It was held in Cooray (1951) 53 NLR 73, per Nagalingam J that where a charge of criminal breach of trust has been framed in terms of Section 165(2) of the Code of Criminal Procedure Act No 15 of 1979, 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.

The scope of the principle allowing joinder of charges relating to three offence of the same kind committed during one year may be illustrated by reference to the case law, says Prof. Peiris.

Criminal breach of trust

As decided in Cooray (1950) 51 NLR 433, per Gratiaen J, Section 165(2) of the Code of Criminal Procedure Act No 15 of 1979, read with relevant provisions of the law, admittedly permits an accused person to be charged and tried at one trial for the commission of any number of offences of criminal breach of trust or dishonest misappropriation of movable property (if alleged to have been committed in the course of a period not exceeding one year). However, there is nothing in the law which sanctions the trial of an accused person on more than three charges of abetment of either of these offences, in the same proceedings. The liability of an alleged abettor, under the law, to be tried with the principal offender is subject to his right, to claim that not more than three charges of the same kind may be laid against him in the course of a single trial. This right is, so far as the abettor is concerned, not affected by the provisions of the law.

In Senanayake (1917) 20 NLR 83 the accused was charged with several acts of house-breaking committed on 4 June 1915, during the riots, by entering into the boutique of three men with the intention, in each case, of committing theft. It was held that the joinder of three distinct charges of offences committed against three different persons was not wrong. The relevant requirement, it may be emphasized, is that the three offences should be of the same kind, and not necessarily that they should be committed against the same person. Wood Renton CJ said: "To insert in the provision the words 'against the same person' when the Legislature has omitted them would be a stretch of judicial interpretation closely approximating to actual legislation itself."

On the conviction of an attempt to commit an offence though the attempt is not separately charged, Section 179 lays down that when a person is charged with an offence and it is proved that he attempted to commit that offence and that in such attempt he did an act towards the commission of that offence he may be convicted of an attempt to commit that offence although he was not charged with such attempt: Provided that anything in that Section shall not be deemed to authorize the conviction of any person for an attempt to commit an offence unless an attempt to commit that offence is made punishable by any written law for the time being in force in Sri Lanka. On the fact that all persons concerned in committing an offence may be charged together, Section 180 lays down that when more persons than one are accused of jointly committing the same offence or of different offences committed in the same transaction or when one person is accused of committing any offence and another of abetment of or attempt to commit such offence, they may be charged and tried together or separately as the Court thinks fit; and the provisions contained in the former part of this Chapter shall apply to all such charges.

Accused of the same murder

In illustration it is said: (a) that A and B are accused of the same murder and that A and B may be indicted and tried together for the murder; (b) that A and B are accused of a robbery in the course of which A commits a murder with which B had nothing to do.

A and B may be tried together on an indictment charging both of them with the robbery and A alone with the murder; (c) A and B are both charged with a theft and B is charged with two other thefts committed by him in the course of the same transaction. A and B may be both tried together on a charge charging both with one theft and B alone with the other two thefts; (d) A and B are accused of being members of opposing factions in a riot. They should be indicted and tried separately; and (e) A and B are accused of giving false evidence in the same proceeding. They should be indicted and tried separately.

On when conviction on one charge remaining charges may be withdrawn, Section 181 lays down that (1) when more charges than one are made against the same person and when a conviction has been had on one or more of them the officer conducting the prosecution may with the consent of the Court withdraw the remaining charge or charges or the Court of its own accord may stay the inquiry into or trial of such charge or charges; and (2) that such withdrawal shall have the effect of an acquittal on such charge or charges unless the conviction be set aside, in which case, the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into or trial of the charge or charges so withdrawn.

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