Director of Public Prosecution v Singh [2010] FJMC 5; Criminal Case 2074.2007 (18 February 2010)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: - 2074/2007

DIRECTOR OF PUBLIC PROSECUTION

V

SATNAM SINGH

For Prosecution: - Mrs. Ana Tuiketei
Accused: - Mrs. Julie Shah

RULING

Back Ground of Facts.

1. Mr. Satnam Singh was initially charged for two counts in Criminal Case File 2074/2007 as follows.

The First Count

Selling passport for personation contrary to section 372 of the Penal Code Act 17.

Particulars of The Offence.

Satnam Singh s/o Mahkam Singh together with Ronil Ritesh Prasad s/o Ramesh Prasad, between January 2006 and June 2006at Suva, in the Central Division sold his passport number 5484300 to Neel kamal s/o Hari Chand with intent that the said Neel Kamal s/o Hari Chand may represent himself to be Ronil Ritesh Prasad s/o Ramesh Prasad.

The Second Count.

Personation of the person named in a passport; Contrary to section 371 of the Penal Code Cap 17.

Particulars of the Offence.

Satnam Singh s/o Mahkam Singh together with Neel Kamal s/o of Hari Chand, between the 29th day of May 2006 and 23rd day of June 2006 at Suva in the Central Division uttered a passport number 54843000 lawfully issued to Ronil Ritesh Prasad s/o Ramesh Prasad by falsely representing him to be Ronil Ritesh Prasad s/o Remesh Prasad.

2. The initial charges were amended by the Prosecution to read as follows,

The First Count.

Selling passport for personation contrary to section 372 of the Penal Code Act 17.

Particulars of the Offence.

Satnam Singh s/o Mahkam Singh together with another, between January 2006 and June 2006at Suva, in the Central Division sold his passport number 5484300 to Neel kamal s/o Hari Chand with intent that the said Neel Kamal s/o Hari Chand may represent himself to be Ronil Ritesh Prasad s/o Ramesh Prasad.

The Second Count.

Personation of the person named in a passport; Contrary to section 371 of the Penal Code Cap 17.

Particulars of the Offence.

Satnam Singh s/o Mahkam Singh together with another, between the 29th day of May 2006 and 23rd day of June 2006 at Suva in the Central Division uttered a passport number 54843000 lawfully issued to Ronil Ritesh Prasad s/o Ramesh Prasad by falsely representing him to be Ronil Ritesh Prasad s/o Remesh Prasad.

3. Subsequent to the amendment to the charges, Satnam Singh pleaded guilty for both counts, thereafter learned magistrate transferred the case to the High Court under the section 325 of the Criminal Procedure Code for a review because the Learned Magistrate found that summery of facts tendered by the prosecution did not support the charge.

4. On 23rd of February 2009 the High court reviewed the conviction by the Magistrates’ courts and ruled that the summery of facts tendered by the Prosecution did not support the charges and furthermore, ruled that the Accused Plea is not an unequivocal. High court set aside the conviction by the Magistrate Court and case was remitted to Magistrate’s court for hearing.

5. In the meantime, Ronil Ritesh Prasad was charged in Criminal Case Number 605/2007. He was charged with Neel Kamal in the said information where Ronil Ritesh Prasad was charged for the first count and Neel kamal charged for the Second count. The charges of the said case number 605/2007 to read as follows.

The First count.

Selling passport for personation contrary to section 372 of the Penal Code Act 17.

Particulars of the Offence.

Ronil Ritesh Prasad s/o Ramesh Prasad, between January 2006 and June 2006at Suva, in the Central Division sold his passport number 5484300 to Neel kamal s/o Hari Chand with intent that the said Neel Kamal s/o Hari Chand may represent himself to be Ronil Ritesh Prasad s/o Ramesh Prasad.

The Second Count.

Personation of the person named in a passport; Contrary to section 371 of the Penal Code Cap 17.

Particulars of the offence.

Neel Kamal s/o Hari Chand, between the 29th day of May 2006 and 23rd day of June 2006 at Suva in the Central Division uttered a passport number 54843000 lawfully issued to Ronil Ritesh Prasad s/o Ramesh Prasad by falsely representing him to be Ronil Ritesh Prasad s/o Remesh Prasad.

6. Ronil Ritesh Prasad pleaded not guilty for the 1st count but Neel Kamal pleaded guilty for the second count on his own accord and sentenced for the same on 07th of July 2008.

7. On 18th of January 2010, Prosecution made an application to consolidate both accused in one charge and amend the charges accordingly in case no 2074/2007 when both two cases were mentioned before me.

8. Counsel for the Satnam Singh objected the application of consolidation by the prosecution and counsel for Ronil Ritesh Prasad stated that he is not objecting for the application for the consolidation of the charges. Accordingly I directed both prosecution and the Mr. Satnam Singh to submit their submission in writing in respect of the application for the consolidation of the charges. After perusal of the written submission tendered by both Prosecution and Mr. Satnam Singh, I deliver my ruling on the issue of consolidation of the charges of Mr. Satnam Singh and Ronil Ritesh Prasad in the case No 2074/2007 and the application for the amendment of charges accordingly.

Legal back ground.

Prosecution made this application for the consolidation of charges under the section 120 and 121 of the then Criminal Procedure Code which was repealed by the Criminal Procedure Decree 2009.

Section 120 of the Criminal Procedure code states

(1) Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.

(2) Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.

(3) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be embarrassed in his defense by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information, the court may order a separate trial of any count or counts of such charge or information.

10. Section 121 of the Criminal Procedure code states

The following persons may be joined in one charge or information and may be tried together, namely-

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;

(c) persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character;

(Substituted by 11 of 1972 s. 3)

(d) persons accused of different offences committed in the course of the same transaction.

11. The section 120 of the Criminal Procedure code was replaced by Section 59 of the Criminal Procedure Decree 2009. The section 59 of the Criminal Procedure Decree states

"(1) Any offence may be charged together in the same charge or information if the offences charged are—

a) founded on the same facts or form; or

(b) are part of a series of offences of the same or a similar nature.

(2) Where more than one offence is charged in a charge or information, a description of each offence shall be set out in a separate paragraph of the charge or information, and each paragraph shall be called a count.

(3) Where, before trial or at any stage of a trial, the court is of opinion that—

(a) an accused person may be prejudiced in his or her defence by reason of being charged with more than one offence in the same charge or information; or

(b) for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information –

the court may order a separate trial of any count or counts in the charge or information".

12. Section 121 of the Criminal Procedure Code was replaced by the Section 60 of the Criminal Procedure Decree 2009. The Section 60 of the Criminal Procedure Decree states

"The following persons may be joined in one charge or information and may be tried together —

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of –

(i) aiding or abetting the commission of the offence; or

(ii) attempting to commit the offence;

(c) persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character; and

d) persons accused of different offences committed in the course of the same transaction".

13. Section 120 and 121 of the Criminal Procedure Code were in forced when prosecution made this application for consolidation on 18th of January 2010. The new Criminal Procedure Decree 2009 came into force from 1st of February 2010. According to the section 301(1) of the Criminal Procedure Decree 2009, section 59 and 60 of the Criminal Procedure Decree 2009 is applicable for this application for the consolidation of charge.

14. According to the section 60 of the Criminal Procedure Decree, joinder of two or more accused in one charge or information is not limited as in respect of joinder of counts in one charge or information. Where section 59 (3) stated that, before trial or at any stage of a trial, the court is of opinion that (a) an accused person may be piejudiced in his or her defence by reason of being charged with more than one offence in the same charge or information; or (b) for any other reason it is desirable to direct that the pere tried separately for any any one or more offences charged in a charge or information the court may order a separate trial of any cor counts in the charge or information".

15. T15. The main nucleus of the prosecution application for the consolidation is that to join Mr. Sathnam Singh who is charged for two counts contrary to section 372 and 371 of Penal Code Act in Criminal Case Number 2074/2007 and Mr. Ronil Ritesh Prasad who is charged for count one contrary to section 372 of the Penal Code Act in Criminal Case Number 605/2007 into one charge and tried in single trial.

16. In view of the aforesaid factual and legal back grounds, I am of the view that there are three main issues to be determined in this ruling on the issue of joinder of said two accused.

1. Can Mr. Sathnam Singh and Mr. Ronil Ritesh Prasad considered as

i. Persons accused of the same offence committed in the course of the same transaction? And or

ii. Persons accused of an offence and persons accused of –

(a) aiding or abetting the commission of the offence; or

(b) attempting to commit the offence;? And Or

iii. Persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character? And or

iv. Persons accused of different offences committed in the course of the same transaction? .

2. If court determined the first issue affirmatively, can both Mr. Sathnam Singh and Mr. Ronil Ritesh Prasad be joined in one charge or information?

3. If court determined the first and second issues affirmatively, what are the exceptional circumstances for not joined them in one charge or information?

First and Second Issues.

17. According to the section 393 (1) of the Criminal Decree 2009, provisions of The Penal Code Act 17 are still applicable for this matter where the offences alleged in this matter were committed against the Penal Code prior to the commencement of the Criminal Decree 2009.

18. Wherefore, section 21 of the Penal Code Act 17 provided details definition of the Principle offender, where the said section 21 states

"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a) every person who actually does the act or makes the omission which constitutes the offences;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence".

19. Section 22 of the Penal Code stated where the offences committed by the joint offenders in prosecution of common purpose. The said section 22 states

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence".

20. In this case where both Mr. Satnam Singh and Mr. Ronil Ritesh Prasad are charged for the same offence which is selling passport for Personation to the Neel Kamal contrary to section 372 of the Penal Code Act 17 in the two respective criminal cases numbered as 2074/2007 and605/2007

21. According to the particulars of the offence both Mr. Satnam Singh’s and Mr. Ronil Ritesh Prasad’s act could be considered under section 21 or 22 of the Penal Code either they act separately to commit the said offence or act jointly in order to prosecution of common purpose of committing the said offence.

22. It was held in Director of Public Prosecution v Merriman ( 1972),56Cr. App.R766,796) that "it is important to consider what is meant by a "joint Charge". Its only means that more than one person is being charged and that within certain rules of practice or convenience it is permissible for the two persons to be named in one count. Each person is however, being charged with having himself committed an offence. If the language of the law is to be used then a joint charge is also a several charge".

23. Accordingly, I am of the view that both Mr. Satnam Singh and Mr. Ronil Ritesh Prasad can joined in one charge and tried together under section 60 of the Criminal Procedure Decree 2009.

Third Issue.

24. Justice Shameem held in State v Ashneel Prasad and others ( 2009, FJHC 5;HAM127D.2008(16 January 2009) that both at common law and under statue, the prosecution is entitled to charge principle offender and secondary offenders in one charge or information provided there is sufficient evidential and factual nexus in relation to each accused and provided there is no prejudice to the accused. In view of Shameem J’s decision, the existence of sufficient evidential and factual nexus and or prejudice to the accused, are the reasons not to join principle offender with secondary offenders in one charge.

25. The Counsel for Mr. Satnam Singh submitted that under the following reasons they objecting for the consolidation to read as follows.

1. Prejudice

2. Cost of trial,

3. Unreasonable delay,

4. Abuse of Process.

26. The Counsel for Mr. Satnam Singh urged that if both accused tried in one trial, that both accused will have to examine the other accused in order to verify that he did not collude with others. The main contention for the Mr. Satnam Singh in respect of causing prejudice to him in a single trial with other accused is that he won’t be able to compel the other accused to give evidence if other accused choose not to do so. In respect of this argument Shameem J held in Leweniqila v The State ( 2004),FJHC 209,HAM0031D.2004S(2 June 2004), that " the only basis for the application for separate trial is that one accused wishes to call other accused as witness in his defense is not a sufficient reason to sever the trial. Firstly this will not be a sort trial and the same witness would be required to give evidence at least twice. If all the accused were to make similar applications, the cost to the administration of justice would be immense. Secondly if one accused’s trial precedes others, other accused could not be compelled to give any evidence which incriminated them especially with their own trial pending.

27. The view expressed by the Shameem J in the aforesaid ruling in Leweniqila v The State, I am of the view, that almost all the witness would be required to give evidence at least twice if sever the trial for the both accused. Further, if one accused’s trial precedes other’s, the other accused won’t be able to compelled to give evidence as it will incriminated his own trial.

28. In view of the aforesaid reasons, I am of the view that reason of Mr. Satnam Singh wishes to call Mr. Ronil Ritesh Prasad as a witness in his defense is not a sufficient reason to sever the trial.

29. It was contended by Mr. Satnam Singh in his submission that sever of trial will not cause expensive cost or waste of court time. The Counsel for the prosecution submitted in her oral submission that prosecution is wish to call independence witnesses to proof their case. Accordingly I am of the view, that all these witnesses would be required to give evidence in both trials if court granted separate trials for both accused. As Shameem J held in aforementioned "State v Prasad", that separate trials for multiple accused are expensive and time consuming, there is a real danger of reaching conflicting conclusions on the same evidence leading to inconsistence verdicts and finally there is a risk of different court imposing inconsistent sentences for the same accused upon founding them guilty on the same set of evidence.

30. In view of the aforesaid reasons, I am of the view that sever of trial will be expensive and waste the time than a single trial for both accused.

31. Furthermore, I am not persuaded that the prosecution has manipulated or misused the process of court or deprives the accused of a protection under the law or taking unfair advantage over the accused which is amounted to abuse of process by this application for the consolidation.

32. Wherefore, I allow the application for consolidation and allow the prosecution to file joint charges in amended information.

On this 18th day of February 2010.

R.D.R.Thushara Rajasinghe
RESIDENT MAGISTRATE
SUVA.