Regina v Singh [1977] FJSC 166; Criminal Appeal 50 of 1977 (12 August 1977)

IN THE SUPREME COURT OF FIJI

(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No 50 of 1977

BETWEEN

REGINA
Appellant

AND

1. VIJAY SINGH alias TIGGER
s/o Jalim Singh
2. RAMAN s/o Sanyasi
Respondents

Mr. Ikbal Khan, Counsel for the Appellant
Mr. G.P. Shankar, Counsel for the Respondents.

RULING

The respondents, Vijay Singh and Raman Sanyasi were charged in a Magistrate's Court on 1/3/76 for robbery with violence contrary to s.326(b) of the Penal Code. They both elected to be tried by the Magistrate and both pleaded not guilty.

The case was mentioned fifteen times. On the hearing date, 28/4/77, the prosecution included an alternative count of larceny from the person contrary to section 303, P.C., to which both accuseds pleaded guilty.

The accuseds were represented by Mr. Sahu Khan. The facts revealed that the accuseds were drinking with the complainant. A quarrel arose as a result of which the complainant was grabbed by the first accused Vijay Singh whilst the second accused removed $20 from the complainant's pocket. The latter ran away. The accuseds admitted their guilt when arrested by the police. Those facts were admitted by the accuseds and they were accordingly convicted of larceny from the person.

The first accused Vijay Singh has 9 previous convictions dating from 1960 including larceny, 4 for assault causing actual bodily harm, and rogue and vagabond. His last conviction on 3.9.75 was for assault occasioning actual bodily harm when he received 9months imprisonment suspended for 12months and was fined $20.

In passing sentence on Vijay Singh the Magistrate said,

"Luckily for him the offence of larceny is not of a similar nature so I need not invoke such suspensions and I do not do so."

He did not activate the suspended sentence and impose a sentence of 18months imprisonment suspended for 2 years.

The D.P.P. appeals on the ground that the sentence is manifestly inadequate having regard to the nature of the offence and the antecedents of the respondent, and against the decision not to activate the suspended sentence.

At the hearing of this appeal Mr. Shankar, for the respondents, raised a preliminary point in connection with the procedure followed by the learned Magistrate when the alternative offence was included. He submitted that when the new count was added the Magistrate should have allowed the accuseds to re-elect whether to be tried on both counts by the Magistrate or in the Supreme Court. He submitted that the Magistrate's omission rendered the proceedings a nullity.

Mr. G.P. Shankar relied upon HARI PRATAP v. R. 14 F.L.R. 93 which held that when a charge was altered the failure to allow the accused to re-elect his place of trial rendered the proceedings null and void. In that case the accused pleaded not guilty and elected to be tried by the Magistrate on four counts of obtaining money on a forged document. Later the charge was amended by adding 4 additional counts of forgery; the accused, elected to be tried in the Magistrate's court on the four additional counts and pleaded not guilty to those. The trial proceeded on all eight counts the Magistrate convicting on the first four counts but not on the four additional counts.

It was held by the Fiji Court of Appeal that once the additional counts were added to the charge the Magistrate should have treated the charge containing all 8 counts in accordance with s.204(1) of the C.P.C. which reads -

"204(1) Where, at any stage of the trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case."

Provided that:-

(a) where a charge is altered as foresaid, the court shall thereupon call upon the accused person to plead to the altered charge;

(b) where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his barrister and solicitor and, in such last-mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out of such further cross-examination."

The Fiji Court of Appeal held that the Magistrate should have allowed the accused to plead again to the first four counts because they formed part of an altered charge. It was not sufficient to take his plea on the additional four counts. The Court pointed out that the charge is the document containing all the counts and any additional or alteration to those counts or the inclusion of an alternative count amounted to an alteration to the charge and under s.204(1)(a) the accused should plead again to all the counts and not simply to the new or altered counts. It should perhaps be noted that the C.P.C. uses the word "charge" as if it meant indictment as used in English criminal procedure.

In taking that view the Court of Appeal differed from the learned Chief Justice of that time.

That decision was overruled by the Privy Council in P.C. App 10/959 who had held that the phrase "altered charge" in s.204(1)(a) meant any altered count i.e. any count which has been altered or subsequently added to the charge sheet. Consequently it was only necessary for an accused to be asked to plead again to the particular count which had been altered or included and the pleas already tendered on original and unaltered counts should stand.

It follows therefore that in the instant case it was only necessary for the alternative charge of larceny from the person to be pleaded to and that the pleas of guilty to the unaltered robbery charge should stand. This of course was just what the learned Magistrate did and the pleas of not guilty to the robbery charge remained good.

Mr. G.P.Shankar pressed the point that 13 months had elapsed between the taking of the accuseds' plea of not guilty to the robbery count and their further plea of guilty to the count of larceny from the person and that the accused should have again been asked whether he desired to be tried by the magistrate or in the Supreme Court on that count. I was referred to R v. Kettering Justices 1968, 3 A. E. R., 167, but it is not an authority for the proposition put forward by Mr. Shankar; it holds that where an accused has a right of election the court has to inform him personally of that right and not simply mention it to his counsel. However, once the accused has been personally informed of his right then his counsel may answer on the accused's behalf stating whether he wishes to be tried by the Magistrate and pleaded not guilty. The alternative count in the instant case would obviously be determined on the same evidence which would be led on the robbery count and would not occasion the introduction of fresh witnesses. If the accused had to be put to his election on the alternative count there would be a strange result if he elected to be tried in the Supreme Court on the count of larceny. If he were convicted by the Magistrate on the robbery count he could plead autre fois convict in the Supreme Court; likewise if he were acquitted on the robbery count the Magistrate could under s.163 of the C.P.C. enter a conviction for larceny from the person and if he did not do so the accused could plead autre fois acquit in the Supreme Court, to the count of larceny from the person.

Once the accused had elected to be tried by the magistrate on his plea of not guilty to robbery he had, in my view accepted that the magistrate would hear all the evidence in relation to that allegation and return a verdict of guilty or not guilty of that offence or of any lesser offence under s.163(1) C.P.C. although it was not set out in the charged sheet. In pleading guilty to the alternative count of larceny from the person he was saying in effect, that although the evidence to be adduced on a trial for robbery would not support the robbery count it would prove the lesser charge which it would have been open to the magistrate to consider under s.163(1) C.P.C.

On pleading not guilty to robbery the accused put in issue not simply his guilt on the substantive charge but the issue of guilt on any lesser charge coming within the bounds of s.163 (1) C.P.C. which could be supported by the evidence.

The Fiji Court of Appeal in Jagdishwar Singh v. Reginam, Cr. App. 32/76 held that on a plea of guilty, supported by a clear admission of facts which would prove the offence of causing grievous bodily harm with intent to main contrary to s.255 (a) of the P.C., the magistrate may acquit the accused of the major offence and return a finding of guilty on the lesser count of assault occasioning actual bodily harm contrary to s.277 P.C., although no lesser count had been added to the charge and although the major count had not been withdrawn and although the accused's plea of guilty thereto was not withdrawn.

If the Court of Appeal's decision was correct in Cr. App. 32/76, and it was followed by the learned Chief Justice in Cr. App 34 &35 of 1977, it follows that to add an alternative count which amounts to a lesser offence merely includes an offence which is embraced by the major count which the accused has elected the magistrate should deal with.

An accused may, when a count is read out to him plead not guilty to that offence but guilty to some lesser offence. It would be superfluous for the magistrate, in such circumstances, to require the accused to re-elect his mode of trial and this is never done.

An accused's election to be dealt with by the magistrate is an election that the magistrate shall hear all the evidence relating to that count and return a finding on it or on any lesser count which may be proved under s.163(i) or (ii) P.C. although the lesser count has not been written into the charge. If the lesser count also appears in the charge when the accused pleads and makes his election, it would be superfluous to ask him to elect whether or not he would be tried by the magistrate on the lesser count, if he has already elected to be so tried in the major court.

The learned magistrate was not in error in accepting and proceeding on the accused's plea of guilty to the lesser charge of larceny from the person without again calling on him to elect whether he would be tried in the Magistrate's Court or in the Supreme Court.

(SGD) J.T. WILLIAMS
JUDGE

LAUTOKA,
12th August, 1977.