LAW OF CRIMINAL PROCEDURE Part XIX Joinder of Charges V
By Chandra Tilake Edirisuriya-2017-11-03
Know Your Law
It must be noted that, even where the distinct acts alleged constitute cumulatively the 'same transaction', the Court has the discretion in determining whether joinder of charges is appropriate. In Boteju v Moorthy (1954) 55 NLR 374, K.D. de Silva J said: "The words used in the Section are 'may be charged' and therefore it is clear that it is not obligatory that all the offences committed by a person in the course of the same transaction should be tried at one trial".
A controversial question in this regard is whether charges based on the existence of an unlawful assembly may be validly joined in the same indictment with charges based on the existence of a common intention as described in Section 32 of the Penal Code, says Prof. Peiris.
In Don Marthelis (1963) 65 NLR 19, Heart J and Abeyesundere J answered this question in the negative. The decision, however, appears to have been based on a concession made by the Crown Counsel who argued the case.
The same view was taken by the Court of Criminal Appeal consisting of Basnayake CJ and Heart and Abeyesundere JJ in the case of Thambipillai (1963) 66 NLR 58. The five accused were indicted on different counts under the Penal Code. In counts 1, 1A and 2 they were charged under Sections 140, 346 read with 146, and 380 read with read with Section 146 respectively. In counts 2A and 3 they were charged under Sections 346 and 380 respectively. In count 4 the first accused alone was charged under Section 394. In count 5 the second accused alone was charged under Section 364. All the accused were acquitted on counts 1, 1A and 2.
The second and the third accused were acquitted of the remaining charges, too. The first, fourth and the fifth accused were convicted of the offences alleged in counts 2A and 3, and the first accused was in addition convicted of the offence alleged in count 4. The Court of Criminal Appeal held that the joinder of counts 2A and 3 with counts 1, 1A and 2 was not authorized by provision corresponding to that contained in the law.
An unlawful assembly
This view has now being conclusively rejected. It is settled law today that the charges based on the existence of an unlawful assembly may be validly joined in the same indictment with charges based on the existence of a common intention as held in Khan v Ariyadasa (1963) 65 NLR 29 per T.S. Fernando J; Ibralebbe (1963) 65 NLR 470, per H.N.G. Fernando J; Khan v Ariyadasa (1965) 67 NLR 145, per Lord Morris of Borth-y-Gest (Judicial Committee of the Privy Council).
It must be noted that joinder of charges is allowed "If, in one series of acts so connected together as to form the same transaction, more offences than one are committed". The basic question, then, is whether, in cases like Don Marthelis and Thambipillai, more offences than one are referred to in the indictment, or whether the same offence is alleged under different names.
Section 32 of the Penal Code provides that "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone".
Section 146 of the Penal Code is to the effect that "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly is guilty of that offence". The main contention, in support of the position that the joinder of charges is not lawful in these cases, is that one of the requirements specified in the law – that 'more offences than one' are alleged – is not complied with in these circumstances. The contention is that, although Section 146 of the Penal Code creates a liability on a member of an unlawful assembly for an offence committed by another member of the unlawful assembly in prosecution of the common object, yet it does not create an offence distinct from the offence committed by the other member. The argument runs as follows: if there is a count charging, for example, an offence under Section 434 of the Penal Code read with Section 146, then the allegation is that one or more those who were members of the unlawful assembly committed house trespass with the result that all are vicariously guilty of house trespass. That being so, a count under Section 434 charging the direct commission of house trespass cannot – so the argument runs – be joined and tried at the same time with a count based on Section 146, for that would be a charge of the same offence and there would not be charges of "more offences than one".
A hypothetical case
Prof. G.L. Peiris says that the fallacy of this argument has been convincingly exposed in the decided cases. He says that one of the most helpful judgments in this connection is that of H.N.G. Fernando J in Ibralebbe. For the purpose of convenience, His Lordship approaches the relevant provisions of the law in the same way as would a State Attorney engaged in the task of framing an indictment upon facts which are at first sight simple and which become complex only in stages.H.N.G. Fernando J discusses a hypothetical case in which the evidence discloses (a) that A shot at X with a gun at close range; (b) that the gun-shot injury resulted in X's death; and (c) that a jury may reasonably infer a "murderous intention" on the part of A. On these facts, there must undoubtedly be framed a count that A committed murder by causing the death of X. if, in addition to the facts stated above, the evidence also discloses (d) that, at the time of the shooting, A had been a member of an assembly together with five or more persons of unknown identity having a common object of causing the death of X; and (e) that A, in all probability, fired at X in prosecution of that common object, the question arises whether there can be properly added a second count charging A with an offence under Section 146 of the Penal Code.
There would be no doubt that an offence under Section 146 would have been committed for, in terms of the requirements in Section 146, (i) an offence was committed by a member of the unlawful assembly; (ii) the offence was committed in prosecution of the common object; and (iii) A was, at the time of the commission of that offence, a member of the assembly. A is, therefore, guilty of "that offence" – namely, the offence of murder – and the appropriate count against him on this score would be under Section 146 and Section 296, read together. The appropriate charge would then be under Section 296, read with Section 146.
In regard to the propriety of joining the two charges, under our law, the significant question is whether A did indeed commit two different offences – in other words, whether the offence under Section 146 is distinct from the offence under Section 296. There is no doubt, in the present condition of our law, that the question has to be answered in the affirmative. The basis of this view was cogently explained in Ibralebbe's case: "It is technically correct that, on the facts as assumed, the charge which may be framed against A under Section 146 of the Penal Code would be one of murder. But in truth the acts which render 'A' guilty of the offence under Section 146 are distinct from the acts which constitute murder within the definition in Section 293 and 294 of the Penal Code. The offence under Section 146 consists in A's having been a member of an unlawful assembly, having the common object of causing X's death, at a time when some member of that assembly actually caused the death in prosecution of that common object. The ingredients of this offence are surely different from those involved in the offence of murder under Section 296. The ingredients, which were numbered (a), (b) and (c), completely satisfy the definition of murder: it is only because of the existence in addition, of the ingredients (d) and (e) that A becomes guilty of the offence created by Section 146".
Offence of murder
The distinction of the two offences was lucidly stated by H.N.G. Fernando J: "A person is guilty of the offence of murder defined in Section 294 because he caused death with the requisite intention, but a person is guilty of the offence (of murder) created by Section 146 for an entirely different reason, the principal reason with reference to himself being that he was a member of a particular unlawful assembly at a time when murder was committed in prosecution of the common object".
In this context, the commonest case of the application of Section 146 is one where the very member who commits the offence of murder in prosecution of the common object of the unlawful assembly is charged with, and convicted of, offence under Section 146 read with Section 296. Thus, where an unlawful assembly is alleged to have consisted only of five named persons, and all five are charged with the offence under Section 146 read with Section 296, the very basis of the charge is that one of the five did commit the murder. The ground for the conviction is not the fact that he committed murder and is not different from the ground for the conviction of the other four members; the ground in each case is membership of the assembly at a time when some member committed the murder in prosecution of the common object.
In Khan v Ariyadasa (1963) 65 NLR 29, it was held, per T.S. Fernando J, that a simple test for deciding whether what the prosecution alleges are two distinct and separate offences are in reality one and the same offence would be to consider whether the elements necessary to establish the one are the same as those required to establish the other. Judged by this test, it is clearly seen that the elements necessary to prove the offence under Section 296 are quite distinct from the ingredients required to constitute liability under Section 146, says Prof. G.L. Peiris.
