LAW OF CRIMINAL PROCEDURE Part XIX Joinder of Charges IX

By Chandra Tilake Edirisuriya-2017-12-01

The Court observed: "The problem is as to when the Trial Judge may 'think fit' to order a separation. Must that discretion be exercised before the accused is given in charge of the jury, or may it be used at any subsequent stage? The Section is silent on that point. Four of us are of opinion that there is no warrant for restricting the scope of the Section. Nor do we think that a duty is cast upon the Trial Judge, before the prisoners are called upon to plead, to hold a kind of preliminary inquiry in every case to decide whether a joint trial should take place or separation should be ordered. We agree that, once a Trial Judge has exercised his discretion and ordered a separation of trials, he cannot at a subsequent stage order such prisoners to be charged jointly, but the majority of us are of opinion that there is nothing in the language of the Section that prevents a Trial Judge from exercising the discretion vested in him to order a separation of trials for an adequate reason after the trial has begun".

In regard to element (5) it was held in Arthur Perera (1956) 57 NLR 313 per Basnayake CJ that where several persons concerned in committing an offence are charged together, the question whether a separate trial should be ordered or not is a matter entirely at the discretion of the Trial Judge. Once that discretion has been judicially exercised, a Court of Appeal will not interfere, except when it appears to it that a miscarriage of justice has resulted from the accused persons being tried together.
Moreover, in considering the question of separation of trials, it is wrong to look at the matter exclusively from the point of view of the accused. The interests of justice demand that the prosecution should not be unduly hampered in the presentation of its case.

In regard to element (6) it was held in Abeyekoon v Don Philip (1909) 2 Leader 174, that the joinder of accused persons has been permitted in cases involving unlawful gaming.

However, in John Silva v Lewis (1909) 3 Weerakoon's Rep 53, where four persons were charged with, and tried together for, an offence, in that each of them drove his cart after dark and before daylight on the public road without lanterns, it was held that the accused persons could not be jointly charged. See also Collette v Podda (1905) Lem 81.

Trying accused and abettor

There is no irregularity in trying the accused and the abettor together as decided in Ahamadoe v Veerakutty (1909) 2 Leader 1493; cf. Murugappa v Kanapathy (1899) 1 Tamb 22.
However, in Cooray (1950) 51 NLR 433 it was held per Gratiaen J that in regard to abetment, by facilitation, of the offence of criminal breach of trust, the liability of the alleged abettor to be tried jointly 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.

In regard to element (7) can the members of two opposing factions charged with affray be tried together? The early cases Velaiden v Soysa (1912) 14 NLR 140; Wickremesurya v Don Lewis 1 CWR 192; Keegal v Mohideen 5 CWR 162; and Police Officer v Dineshamy (1919) 21 NLR 127 support the view that, where persons before the Court are members of the opposite factions involved in a disturbance, they ought not to be tried together but tried separately.

In a later case Abeyewardene v Fernando (1925) 27 NLR 97, Bertram CJ while following these authorities with reluctance added:

"It seems to me that, in cases of this sort, where there is mutual assault or affray in a public place or any sort of disturbance between various persons, it would often be most convenient and reasonable to bring them together before the Court, have all the circumstances investigated, and have the several accused dealt with according to their responsibility".

The doubts expressed on this point by Bertram CJ have been confirmed by the decisions in Hewavitarne v Appuhamy (1929) 30 NLR 97 at p 35, per Fisher CJ; Weerasinghe v Mohamadu Ismail (1932) 33 NLR 245 at p 248 per Macdonell CJ which represent a reversal of the trend reflected in earlier authorities. The view that members of opposing factions charged with affray can be tried together is now established by a cursus curiae.

In terms of the decision in Deputy Fiscal, Matara v Don Carolis (1931) 33 NLR 162, per Drieberg J this result is defensible on the footing of a principle of contemporaneous action adopted by several accused in the same transaction.

With regard to offence proved included in offence charged the applicable provision in the Code is:
(i) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offences though he was not charged with such offence.

Criminal breach of trust

In Wickremesighe v Obeysekere (1935) 37 NLR 327, the accused was charged under Sections 328 and 329 of the Penal Code with causing hurt by doing one or more of the following acts rashly and negligently, namely (a) by driving a motor car so as to cross or commence to cross a highway and obstruct another car; or (b) by driving a motor car, having failed to take such action as may be necessary to avoid an accident. Macdonell CJ held that the accused could be lawfully convicted of the corresponding minor offences created by the Motor Car Ordinance.

According to the decision in Cooray (1952) 59 NLR 409 at p 415 (PC) a person who is charged under Section 392 of the Penal Code with criminal breach of trust as an agent can be found guilty of criminal breach of trust simpliciter under Section 389 although he is not charged with the latter offence.

However, in Mendis (1937) 39 NLR 182 per Abrahams CJ, it was held that a conviction of causing hurt can be substituted in appeal for one of rioting, as causing hurt is not a "minor offence in relation to rioting", within the meaning of the relevant provision of law.

In Attorney General v Karunaratne (1960) 63 NLR 296 it was held per T.S. Fernando J that if a Magistrate acquits the accused of the major offence without exercising the discretionary power vested in him to convict the accused of the minor offence, the Attorney General is not entitled to appeal against the order of acquittal, but the Supreme Court may, in such a case, exercise its revisionary jurisdiction.

(ii) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he was not charged with it.
Thus, a person charged with murder may be convicted of culpable homicide not amounting to murder, says Prof Peiris.

(iii) Anything in this Section shall not be deemed to authorize a conviction for any offence referred to in Section 135 when a complaint has not been made as required by that Section.

It was held in Periyasamy (1957) 58 NLR 433 per Basnayake CJ that in accordance with Section 179 of the Code of Criminal Procedure Act No. 15 of 1979, on conviction of an attempt to commit an offence though attempt is not separately charged, 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 into 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, a person charged with murder can, if the evidence warrants it, be convicted of attempt to commit murder or attempt to commit culpable homicide not amounting to murder, although he was not charged with these offences.

In relation to Section 181, (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. (2) 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.

In the case of de Silva (1940) 41 NLR 483, where the accused persons were charged (a) with being members of an unlawful assembly, the common object of which was to cause serious bodily injury to X; (b) that, being members of an unlawful assembly, they did, in the prosecution of their common object commit murder by causing the death of X; and (c) that they, acting in furtherance of a common intention, did commit murder by causing the death of X. The jury convicted the accused of counts (a) and (b) whereupon Crown Counsel withdrew count (c). The Court of Criminal Appeal was of the view that there was not sufficient evidence to establish that the accused formed an unlawful assembly or that they acted in furtherance of a common intention to cause the death of X. Howard CJ held, however, that it was open to the Court of Criminal Appeal to substitute a verdict under count (c) or for any lesser offence established by the evidence.