LAW OF CRIMINAL PROCEDURE

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By 2017-11-17

By Chandra Tilake Edirisuriya

Know Your Law

Three considerations are of particular importance in this regard says Prof. G.L. Peiris in his unique and comprehensive treatise Criminal Procedure in Sri Lanka. The first consideration as held in Bandara v Inspector of Police, Padukka (1960) 62 NLR 73, per Basnayake CJ is that the facts which can be proved should not be in doubt. The doubt should be only as to the offence or offences constituted by them, and should arise from the nature of the act or acts on the part of the accused.

The second consideration as held in Vellasamy (1960) 63 NLR 265, per Basnayake CJ is that the facts must be such as would equally support any one of two or more charges. The Section cannot properly be applied to a case in which one offence alone is indicated by the facts and, in the course of the trial, the evidence falls short of that necessary to establish that offence but discloses another offence.

The third consideration as held in Kitchilan v The King (1944) 45 NLR 82 per Hearne J is that the doubt which justifies the framing of alternative charges cannot be a doubt in regard to the intention of the accused, either individually or collectively. This is not the kind of doubt contemplated by the provision permitting joinder.

The legal position has been lucidly explained in Piyasena (1942) 44 NLR 58 per Soertsz thus: "The Section shows that the different offences contemplated are cognate offences, and it is doubted which of these acts or series of acts committed by the accused may, ultimately, be found to constitute. This Section, however, postulates a case in which a doubt arises from the nature of the fact or series of facts and not from a failure to appreciate the value of the unambiguous facts from an accurate view of the position in the law arising from those facts".

In the early case of Arnolis (1921) 23 NLR 225 the Supreme Court observed that the District Judge was perfectly right in saying that the facts disclosed theft or nothing, although the accused had been charged with retaining stolen property, knowing it to be stolen.

Nevertheless, the Supreme Court took the view that it was open to the District Judge, under provisions corresponding with that contained in the law, to convict the accused of theft, if he thought that the circumstances of the case justified this course. This view is plainly erroneous, however. If it was perfectly clear, as it was held to be, and as it was in fact, that the offence of the accused, on the facts of the case, was theft or nothing the relevant provisions allowing joinder of charges does not come into operation at all. In Piyasena it was held: "The condition precedent for its operation is a genuine doubt arising from the nature of the facts in the case".

A genuine doubt

The principle was applied in Ratnayake v Devendra (1948) 36 CLW 53. The first accused was charged in the alternative. The second accused was charged with the commission of an offence in the same transaction. The two accused were tried jointly. On the facts disclosed before the charge was framed, there was a doubt as to which of several offences the first accused had committed. It was held that, as a genuine doubt existed at the time the charge was framed as to which offence the first accused had committed, the charge was properly framed in the alternative.

It is useful, at this stage, to indicate the contrast between cases where joinder of charges has been upheld under this provision and cases where it has not, says Prof. G.L. Peiris.

In Jayasena (1947) 48 NLR 241 seven accused were charged with committing theft. Three of them were found guilty of theft, and the other four were convicted of dishonestly receiving or retaining stolen the property. The evidence showed that there was, so far as some of the accused were concerned, a measure of doubt as to whether the Court would draw the inference that the facts constituted theft or dishonest receiving of property. Howard CJ and Jayatileke J held that it was open to the Court to find some of the accused guilty of theft and others guilty of dishonest receiving. The doubt as to the legal inference which was appropriate from the facts was stressed as the basis of upholding the legality of the joinder cf. Wijeyeratne v Menon (1947) 48 NLR 164 per Canekeratne J.

In Wimalasena v Inspector of Police, Hambantota (1967) 74 NLR 176, after an article was suspected to have been stolen by a person breaking into a house, the first accused was found to be in possession of the stolen article. There was evidence that, on the following day, he had attempted to dispose of it. Siva Supramaniam J held, on the facts, that a charge of voluntarily assisting in the disposal of stolen property could be joined against the accused as an alternative to a charge of dishonest retention of stolen property and also that these alternative charges could be validly combined with charges of house-breaking and theft as it was also held in Canagasingham v Meyadin Bawa (1931) 33 NLR 356 per Akbar J. The Court endorsed the following proposition: "The doubts for which the Section seeks to provide are doubts as to what inferences will be drawn from the evidence, if believed. The doubt which of several offences the facts proved will constitute must arise from the very nature of the facts of which it is intended to offer evidence". The criterion was thought to be satisfied by the facts of the case, says Prof. Peiris.

Charged jointly with murder

Kitchilan was a case where five accused were charged jointly with murder of one Hinni Appu. In the alternative, they were charged with the abetment of this murder. The facts which the prosecution was expected to be able to prove were that, shortly before his death, the accused had been conducted to a barrack room at the Matara Police Station where he was told by the fourth accused to undress and lean against a pillar; that the second and the fifth accused held his hands behind the pillar; that the fourth accused struck him on the chest, whereupon he fell to the ground; that, while the victim was in that position, the third accused stamped on his chest ; that the second, third, fourth and fifth accused struck him with their fists; that the first accused then came into the room and ordered the deceased to be assaulted; and that there followed an assault in which all took part, including the first accused.

It was not disputed that the death of the victim was the direct result of this series of attacks on him, but the prosecution was unable to say that it was the result of the act of any one or more of the accused.

There was evidence that, whoever struck the fatal blow, the others by their acts aided the commission of the offence. In these circumstances, the majority of the Court of Criminal Appeal held that the joinder of alternative charges was lawful.

Reference may now be made to some examples of cases which have been held to fall on the other side of the line, says Prof. Peiris.

It was held in Mendis (1937) 39 NLR 182, that in appeal a conviction for causing hurt cannot be substituted for one of rioting, as causing hurt is not an alternative offence to rioting within the meaning of the relevant provision.

In Hendrick Singho (1903) 7 NLR 97, where A, having been acquitted of a charge of murder, was indicted for abetment of murder, it has been held that a charge of murder and a charge of abetment of murder against the same person may be joined, and that the accused may properly be convicted of abetment of murder.

With this case may be contrasted the decision in Wijepala (1962) 68 NLR 344. The accused was charged in the same indictment with the commission of the offence of theft of certain articles and, in the alternative, of retention and disposal, at least one year later, of stolen property. H.N.G. Fernando J held in appeal, that the evidence relevant to the two alternative counts was quite distinct from that which related to the charge of theft and that, in the result, there was an illegal joinder of charges.

It was held in an anonymous case reported at (1899) Koch that a charge of dishonestly receiving stolen property is alternative to a charge of theft, therefore, a man can be convicted of one only of the two alternative offences.

A fresh charge

In Dingirihamy v Adonchia (1906) Leem & Asser 46 it was held that whereas a Magistrate finds that the evidence led by the prosecution in support of a charge discloses an offence distinct from the one the accused is charged with, the Magistrate should generally frame a fresh charge and afford the accused an opportunity to cross-examine the witnesses for the prosecution in relation to the new charge.

The Code of Criminal Procedure Act No. 15 of 1979 goes on to provide in Section 177 that "If the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that Section, he may be convicted of the offence which he is shown to have committed although he was not charged with it".

The limitations which were noticed earlier are relevant in this connection as well, says Prof. Peiris.

It has been held in Rasiah v Rajadurai 3 CLW 104 and Salgdo v Maudali Pulle (1941) 43 NLR 94 per Morsely SPJ that in accordance with these limitations, where an accused is charged with theft of property or, in the alternative with dishonestly receiving or retaining stolen property, the accused could not be convicted of criminal misappropriation without a fresh charge.

It was held in Mariyanayagam v Basnayake (1944) 45 NLR 479 per Wijeyewardene J that, similarly, where the accused was charged with theft and on the trial date, the prosecution moved that alternative charges in respect of receiving stolen property and assisting in disposing of stolen property be added without any objection on the part of the accused's Counsel, and where the Magistrate proceeded to try the accused and convicted him of the latter offence, the failure to frame a charge vitiated the conviction.

It was held in Premawardena v Siriwardene (1928) 30 NLR 292 per Lyall Grant J that a person charged with having committed the offences of wrongful restraint, criminal force, criminal intimidation and misconduct in public, cannot be convicted of insult without a specific charge being framed against him in respect of the latter offence.

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