By Chandra Tilake Edirisuriya-2017-09-15
Attorney-General v. Dheen (1961) 61 CLW 74 is a helpful case. The prosecution case was that the accused, who was a proctor, had been entrusted by one G with a sum of Rs 340.09 on 18 December 1951 to be paid before 14 January 1952 to the credit of an action in the Court of Requests of Galle. The money had not been deposited in Court, but when a complaint was made by G to the Law Society, the accused had, before any inquiry was held, paid the money back to G. The charge against the accused was in the following terms: "That you did at Galle on 18 December 1951, you being entrusted with property, to wit, a sum of Rs 340.09 in your capacity as agent, did commit criminal breach of trust in respect of the said property and that you have thereby committed an offence punishable under Section 392 of the Penal Code."
At the trial, it was contended on behalf of the accused that that charge meant that the offence was committed on 18 December 1951, but that there was no evidence to prove the commission of an offence on that day. Upholding this contention, the Magistrate discharged the accused.
The Attorney-General appealed against this order. In appeal, it was submitted on behalf of the Attorney-General that the charge did not mean that the offence was committed on 18 December 1951, but it was committed in respect of money which was entrusted to the accused on that date. It was further argued (a) that the averments in the charge, taken together, were reasonably sufficient to give the accused notice or the matter with which he was charged; (b) that it was not necessary that the charge should particularize the time of the offence; (c) that even if the Magistrate thought that the time should have been stated, he should have amended the charge to supply the omission; and (d) that the Magistrate should have convicted the accused, as he had held both that the money had been entrusted to the accused on 18 December 1951 and that the accused had misappropriated it.
Prosecution failed to prove charge
Gunasekera J. held (1) that the charge meant that the offence was committed on 18 December 1951, and that the prosecution had failed to prove this charge; (2) that there was no omission in the statement of the particulars of the offence that had to be supplied by an amendment; and (3) that, as the accused was not tied on a charge of having committed an offence at any other time than on 18 December 1951, it was not open to the Magistrate to find that the accused misappropriated the money.
In the course of his judgment Gunasekera J said: "In order to defend himself against the charge that he was called upon to answer, it was sufficient for the accused to show that there was no evidence that he misappropriated any money on the day in question. It was not necessary for him to give or adduce evidence contradicting or explaining other items of incriminating conduct imputed to him by the prosecution, such as was imputed in the evidence that he claimed to have deposited the money to the credit of the civil case. Nor was it necessary for him to adduce evidence in support of his explanation of his omission to deposit it.
Under these circumstances an inference that he misappropriated the money at some other time, though he may not have done so at the time in question, cannot be drawn from the fact that he has not chosen to refute any particular allegation. In my opinion there was no sufficient ground for the Magistrate's finding that the accused misappropriated the money."
The facts of Rohana v. Senaratne (1967) 61 NLR 370 are scarcely distinguishable from those of Attorney-General v. Dheen. In Rohana's case Tennekoon J. endorsed and applied the judgment in Attorney General v Dheen. In Rohana v. Senartne, Tennekoon J made the following comment on the previous case: "It was obviously the view of Gunasekera J that, in a case where a date of offence is alleged in a charge relating to temporary misappropriation, the accused is under no duty, and that it would be irrelevant for him to show, that he had not misappropriated the money on a subsequent date or that he had properly applied it on such subsequent date."
Temporary misappropriation
The principle now established for our law is that "In a charge involving what is sometimes referred to as 'temporary misappropriation,' the specification of a named date or 'a date unknown' between two terminal dates, is that kind of particular relating to the matter with which the accused is charged, which is almost invariably material, for the reason that the defence is virtually being told that evidence of honest dealing with the property after the alleged date of the offence is irrelevant and need not therefore be produced at the trial."
This proposition, it is submitted, is not at variance with the reasoning by Swan J in Panditakoralage v. Selvaranayagam (1954) 56 NLR 143. This case cannot be regarded as dealing with a situation which is in pari materia, as Panditakoralage's case had no bearing on misappropriation of property, in any form, but related to a charge of possessing ganja, says Prof. G.L. Peiris in his landmark thesis 'Law of Criminal Procedure in Sri Lanka.
On the special facts of the case, Swan J held that the accused had not been misled by the reference in the charge to the date of the offence as 'on or about 28 March 1954,' when the evidence disclosed that the ganja was actually found in the accused's possession on 29 March 1954.
However, in Pandithakoralage v. Selvaranayagam, Swan J, purporting to follow English authority, i.e. the decision in Severo Dossi 13 Cr App Rep 158, per Lord Atkin, laid down the principle that "A date specified in a charge has never been considered a material matter unless time was of the essence of the offence."
This is an obscure formulation of the principle applicable, comments Prof. Peiris.
Error could have misled accused
In Rohana v. Senaratne Tennekoon J observed that "The question for the Court is not the vague test of whether the error could have misled the accused." Furthermore, it was stated: "It must be a matter of special note that prejudice to the accused is the essence of the test under our law, while that element of time being the essence of the test under our law, while the test of time being the essence of the alleged offence does not bring that element to the forefront."
The feature of the test which received emphasis was its concrete and pragmatic character, says Prof. Peiris.
In conclusion, it is appropriate to indicate the rationale underlying the rule that "No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was misled by such error or omission."
In Zahir v. Cooray (1941) 42 NLR 263 Howard CJ stated: "There is no doubt the words of the section are very comprehensive and are designed to ensure that technicalities shall not impede the due and efficient administration of justice".
Alteration of charges
The Code of Criminal Procedure Act No 15 of 1979 makes the following provision in this regard: on the provision that a Court may alter the charge Section 167 lays down that (1) any Court may alter say indictment or charge at any time before judgment is pronounced or, in the case of trials before the High Court, before the verdict of the jury is returned; (2) every such alteration shall be read and explained to the accused; and (3)the substitution of one charge for another in an indictment or the addition of a new charge to an indictment and, in a Magistrate's Court, the substitution of one charge for another shall be deemed to be an alteration of such charge within the meaning of this Section.
When trial may proceed on altered charge immediately, Section 168 lays down that if the alteration made under Section 167 is such that proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may in its discretion after such alteration has been made, proceed with the trial as if the altered indictment or charge had been the original indictment or charge.
On when new trial may be directed or trial adjourned, Section 169 lays down that if the alteration made under Section 167 in such that proceeding immediately with the trial is likely in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
Stay of proceedings
On the requirement to stay of proceedings if prosecution of offence in altered charge requires previous sanction, Section 170 lays down that if the indictment or charge as altered under Section 167 alleges an offence for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained unless sanction has been already obtained for a prosecution on the same facts as those on which the altered indictment or charge is founded.
On the requirement to recall of witnesses when altered, Section 171 lays down that whenever an indictment or charge is altered by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or re-summon and examine with reference to such alteration any witnesses who may have been examined.
On the effect of material error, Section 172 lays down that (1) if the Supreme Court or the Court of Appeal in the exercise of its powers of appeal or revision is of opinion that any person convicted of an offence was misled in his defence by an error in the indictment or charge. It shall direct a new trial to be had upon a charge or indictment framed in whatever manner it thinks fit or makes such other order as the justice of the case may require; and (2) if such Court is of opinion that the facts of the case are such that any valid charge cannot be preferred against the accused in respect of the facts proved or where the circumstances so warrant, it shall quash the conviction.
In illustration it is said A is convicted of an offence under section 193 of the Penal Code upon a charge which omits to state that he knew the evidence which he corruptly used or attempted to use as true or genuine was false or fabricated. If the Court thinks it probable that A had such knowledge and that he was misled in his defence by the omission from the charge of the statement that he had it, it shall direct a new trial upon an amended charge; but if it appears probable from the proceedings that A had no such knowledge it shall quash the conviction.
The rule of the common law of England, as cited by the Criminal Courts Commission, in its Final Report, used to be that "If an indictment was bad on the face of it, or if there was any such insufficiency either in the caption or in the body of an indictment as would make erroneous any judgment whatsoever given on any part thereof, power of quashing indictments in
those circumstances is not often exercised because the Court has wide power of amendment to correct defects in an indictment."
However, it is the practice in England for the Court to quash an indictment on an application made by the accused when it is clear that the indictment has been preferred and signed without jurisdiction, or has a substantial and apparent defect.
The practice in England as provided by the Indictment Act of England, 1915, used to be that an amendment which altered the nature or quality of the offence charged was not usually made, but the Court is now given considerable statutory powers of amendment of an indictment or charge, while the accused's interests are also safeguarded. The Indictments Act was enacted in England in 1915 to do away with "technicalities and redundancies of pleading" in criminal cases, says Prof. G.L. Peiris.
Field Marshal 
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