GRATIAEN J.—Rodrigo v. The Qvteen
Present: Gratiaen J. and L. M. D. de Silva J.T. F. RODRIGO, Appellant, and THE QUEEN, Respondent8. C. 23—D. C. (Criminal) Colombo, N 1,639Conspiracy—Accomplishment of the offence agreed upon—Proper indictment to bring insuch circumstances—Penal Code, s. 113A.
Indictment—Amendment of it by Court—Proper procedure.
Criminal Procedure Code, s. 347 (6) (ii)—Alteration of verdict on appeal—Scopeof—Abetment—Different types of abetment—Penal Code, ss. 100—103-It is undesirable to include a charge of conspiracy in an indictment whichalleges the actual commission of the offence in respect of which the conspiracywas formed.
The primary responsibility for the accuracy and suitability of an indictmentrests with counsel for 'he prosecution, and not on the court. The court may,however, decide to amend the indictment on its own responsibility, but beforesuch a decision in made, both the prosecution and the defence should be givenan opportunity of making their submissions on the point.
The power vested in the Supreme Court under section 347 (b) (ii) of theCriminal Procedure Code to alter a verdict to a conviction on an amendedcharge which the appellant had not specifically been called upon to meet at anystage of the trial must be used with discretion, and only if the accused wasnot misled by the form of the charge and there is not any chance of injusticebeing done. The conviction for abetment under section 103 of the Penal Codecould not therefore, in the circumstances of the present case, be altered to aconviction for abetment under section 102 read with section 101, Explanation 3,without injustice to the appellant.
,/.PPEAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.G., with E. R. S. R. Coomaraswamy, for the 2nd accusedappellant.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 21, 1952. Gratiaen J.—
The appellant, who was the Assistant Storekeeper of the firm of Brown &Co., Ltd., and another accused named McHeyzer were jointly tried beforethe Additional District Judge of Colombo in connection with a seriousfraud which is alleged to have been practised on the Company. Theindictment contains three counts which may be summarised as follows :—
(1) In the first count both accused are charged with having between26th January, 1950, and 8th February, 1950, conspired to cheatthe Q-hief Engineer of the Company by falsely representingto him that a large quantity of copper scrap had been deliveredto the Company’s Stores by a trader named Shanmugarajah,so as to induce the Chief Engineer to issue a cheque for Rs. 4,005iu favour of Shanmugarajah as consideration (for what wasin truth a fictitious sale ;
2J. N. B 28724-1,592 (8/53)
GRATIAEN J.—Rodrigo v. The Queen
In the second count McHeyzer alone was charged, as Vhe principal
offender, with haying “ at the time and place aforesaid and inthe course of the same transaction ” cheated the Chief Engineerin the manner alleged ha the first count of the indictment;
In the third count, the appellant was charged with having “ at
the time and place aforesaid and in the course of the sametransaction ” abetted McHeyzer “ in the commission of the saidoffence, which offence was committed in consequence of suchabetment ”.
McHeyzer and the appellant severally pleaded not guilty to thesecharges. The case for the Crown which these two accused persons werecalled upon to meet had been specified in the indictment with commend-able particularity—namely, that they had combined to abuse their trustas employees by practising a fraud on the Company ; that their commonplan had been successfully carried into execution by McHeyzer ; andthat the appellant had himself abetted the planned commission ofMcHevzer’s offence by active participation so as to facilitate its execution.In effect, the Crown had rejected the position which McHeyzer evenbefore the commencement of the non-summary proceedings had takenup to the effect that if there was a fraud, he had merely acted as aninnocent agent in the transaction.
The evidence on which the Crown relied in support of the charge ofconspiracy was none other than the evidence intended to be submittedas proof of the commission of the actual offences of cheating and abet-ment. In such a situation it has been considered undesirable and improperby the English Courts to charge the accused persons only with conspiracyor to include a charge of conspiracy in an indictment alleging the com-mission of the offences themselves—R. v. Cooper and Compton1 andR. v. West and others2. The practice “ renders admissible evidence of whatone prisoner says in the absence of the other ”—R. v. Luberg 3, and sucha course is “ manifestly calculated to operate unfairly and unjustlyagainst the persons accused”—R. v. Boulton*. I have not been able todiscover why the prosecuting authorities in this country have not dis-continued this practice locally. In the present case, for instance, “ therewas no necessity from any point of view for the insertion of any chargeof conspiracy —-per Humphreys J. in Cooper's case (supra).
The trial took an unexpected turn during its closing stages. After thedefences of both McHeyzer and the appellant had been closed, the learnedJudge decided, “entirely on (his) own responsibility”, to amend (bysubstitution) the third count in the indictment to read as follows :—
“ That at the time and place aforesaid and in the course of the sametransaction, you, L. T. E. Eodrigo the 2nd accuse^ abovenamed,in the commission of the offence set out in count 2 above and whichact was committed in consequence of such abetment but with a differentknowledge or intention from that of the abettor, to wit : with knowledge. on the part of the first accused that the 2 tons 5 cwt. of ‘copper had
4 (1947) 32 Or. App. Rep. 102.3 (1926) 19 Or. App. Rep. 133.
2 (1948) 1 K.B. 709.4 (1871) 12 Oox C. G. 87 at 93.
GRATIAJEN J.—Rodrigo v. The Queen
not been purchased for and on behalf of Brown & Co., Ltd., and thatit had not been delivered at the Stores of the said Brown & Co., Ltd.,and that you thereby committed an offence punishable under Section103 read with Section 403 of the Penal Code.”
This decision appears to have been made by the learned District Judgebecause he had by this time formed the impression upon the evidencethat McHeyzer was in truth only an innocent agent in the perpetrationof the fraud on the Company. Even if that be the explanation, thelanguage of the amendment is clearly inappropriate. It is indeedunfortunate that the desirability of amending the indictment at thisstage, and, if so, the form which it should take, were not consideredafter giving both the prosecution and the defence an opportunity ofmaking their submissions on the point. Had this been done, some of thedifficulties which have now' presented themselves might certainly havebeen avoided. It is sufficient in this context to quote the observationsof the Court of Criminal Appeal in R. v. West (supra) at page 717. “ Noapplication for leave to amend had been made by either side. The learnedJudge was …. entitled to exercise his discretion in directing theamendment, but he clearly should have invited the parties, and inparticular the defence, to express then views on the matter beforedeciding to do so. That opportunity v'as not given. In fact, the Crowndid not desire any amendment and the defence would have stronglyobjected to the amendment if they had been given the opportunityof doing so. ” It is important to note in this connection that the primaryresponsibility for the accuracy and suitability of an indictment restswith counsel for the prosecution, and not on the Court—R. v. Pople x.Humphreys J. remarked in that case that “ there may well be amend-ments which could properly be made at the beginning of the trial whichv'ould be oppressive and embarrassing to the accused if’made at theclose of the case for the prosecution ”. How much more pertinent wouldthis observation be to an amendment directed by the presiding Judge,and not even at the instance of the Crown, after the defence has alsobeen concluded !
The appellant pleaded not guilty to the amended charge, and hiscounsel declined the opportunity of having the witnesses (including,presumably, the appellant’s co-accused McHeyzer) tendered for furthercross-examination. Indeed, learned Counsel protested that his client’sdefence bad been gravely prejudiced by his being called upon at the endof the trial to meet a case w'hieh was substantially different from thatwhich the Crowm had earlier presented against him and from whichthe Crown had never retracted.
The learned Judge then proceeded to pronounce.his judgment. Heheld that the complicity of McHeyzer in. a conspiracy or in the perpetra-tion cf the fraud had not been established beyond reasonable doubt,and McHeyzer wras accordingly acquitted on both the counts whichaffected him. The acquittal of the appellant on the count of conspiracyfollowed as a necessary consequence, but he wras convicted on the third
(1951) 1 K.B. 53.
GRATIAEN J.—Rodrigo v. The Queen
count (as amended) on the basis of the learned Judge’s finding that hehad abetted McHeyzer in the sense that he had instigated that gentleman,who was his innocent agent, to deceive the Chief Engineer in the mannerspecified in the earlier counts of the indictment. In other words, McHeyzerhad not committed any offence but had nevertheless committed actswhich, if accompanied by the requisite criminal intention, would haveconstituted the offence of cheating ; and the appellant, by dishonestlyinstigating those acts, was guilty of abetment. The present appeal is fromthis conviction.
Learned Crown Counsel concedes, and I am satisfied, that the thirdcount of the indictment (as amended) is entirely inappropriate to a setof circumstances such as, in the learned Judge’s opinion, had actuallytaken place. Section 103 of the Penal Code relates only to a situationwhere the principal offender, though guilty, has committed the act abettedwith a different criminal intention to that which actuated the abettor.In that event the abettor’s criminal intention, and not that of the personabetted, must be the measure of his own guilt. If, however, the trueposition is that the person abetted had not, for one reason or another,committed an offence at all, Section 101 of the Code applies and Section102 prescribes the punishment. As Explanation 3 to Section 101 laysdown, “ it is not necessary that the person abetted should have ….any guilty intention or knowledge.” This is precisely what happenedin the present case if the learned Judge’s findings of fact be regardedas correct.
It is common ground that the conviction in its present form cannotstand, but Mr. Jayasuriya contends that this is an appropriate case forthe exercise of this Court’s jurisdiction under Section 347 (b) (ii) of theCriminal Procedure Code to “ alter the verdict ” by finding the appellantguilty of an offence of abetment materially different to that which hadbeen set out in the indictment even in its amended form.
That this Court lias the power to alter a verdict in the manner suggestedby Mr. Jayasuriya is beyond question. But, as Lord Porter pointed outin Thakur Shah v. The Emperor1, “ the power must be used with dis-cretion. If there is any chance of injustice being done or of the accusedhaving been prevented from giving or of his having failed to give evidencematerial to his defence by reason of the amendment of the charge, theCourt should at least make him the offer of a new trial on the chargeas amended. But it is not always necessary to do so …. More
particularly it is not necessary where it does not appear that any freshevidence could be given on behalf of the person convicted. ” Lord Porterproceeded to cite with approval the ruling of the High Court of Patnathat an appropriate amendment of the charge by the Appellate Courtwas justified in that particular case because “ it cannot be said thatthe accused was misled by the form of the charge ”.t
There are three alternatives available to us, sitting as an AppellateCourt, where the language of the indictment on which an accused personhas been convicted at the trial below is inappropriate to <the actualfindings of the(presiding Judge. One alternative is to direct a fresh trial
1 A. I. R. (1943) P.O. 193 at 195.
GRATXAEN J.—Rodrigo v. The Queen
upon an altered indictment—Section 177 (1) of the Criminal ProcedureCode. Another alternative is, without directing a fresh trial, to alterthe verdict under the provisions of Section 347 (b) (ii). If both thesealternatives be inappropriate, the proper course is to quash theconviction and acquit the accused.
It has not been suggested by the Crown that the appellant should bere-tried on an altered count charging him. with abetment. If the offencewas committed at all, it was committed very nearly three years ago,and it would offend one’s sense of justice to expose a person at this•stage to the anxiety and expense of meeting a fresh charge allegingfacts which differ so widely from the case which the Crown had chosento present against him and his co-accused at the earlier trial.
There remains for consideration the proposed alternative of alteringthe verdict to a conviction on an amended charge which the appellanthad not specifically been called upon to meet at any stage of the trial.
Section 100 of the Penal Code contemplates that abetment can takethe form either of instigation or of prior conspiracy or of “ intentionallyaiding ” the commission of the act abetted. In the first and second ofthese cases, the “ abetment ” would necessarily precede the contemplatedaction of the person abetted. The third case, on the other hand, seems toinvolve some contemporaneous activity on the part of the abettor-.
I do not doubt that there may well be situations in which the prosecutionis not in a position to particularise in advance the form which the allegedabetment had taken, nor do I dispute the proposition that, in an appro-priate case, a Court may without causing any prejudice convict anappellant, on the basis of the proved facts, of abetment of the appropriatekind falling within the definition of that offence.
We are here concerned, however, with a very different situation.The language of the original as well as of the amended count of abet-ment, coupled as they are with the preceding counts of conspiracy and ofcheating (alleged to have been committed by McHeyzer in pursuanceof that conspiracy) clearly indicated that the appellant had not beencalled upon to defend himself at the trial against an allegation of abet- ■ment involving prior instigation of any acts which would, if committedby McHeyzer, have formed an ingredient of a criminal offence. Thedistinction becomes apparent if one realises that a man who first instigatesand later “ intentionally aids ” the doing of an act does in truth commitnot one but two abetments.•
The appellant and the lawyers who defended him must necessarilyhave shaped the defence (I do not use this phrase in any sinister form)so as to concentrate upon the particular case which he and McHeyzer hadbeen called upon to meet. Can it then be said that "there is not ‘‘anychance of injustice being done ” if this Court were now to find him guiltyof a different species of abetment, namely, the instigation of an innocentman to commit an act (not an offence) which would result in the decep-tion of the, Chief Engineer to the latter’s prejudice ? Can it be assertedwith confidence that he was not “ misled by the form of the charge ” ?
I do not think so.
•J. Jf. B 28724 (8/53)
A.beymoardene v. Jayanayake
Decisions to the effect that, in a given set of circumstances, >> particularaccused person had not been prejudiced by an alteration of the chargeagainst him can only offer us limited assistance in deciding the presentproblem. Putting this case at the very lowest, I am content to say thatif the accused had been tried alone to meet a charge of abetment- allegingfacts which are in conformity with the view which the learned trial Judgehad ultimately taken of his conduct, I am not convinced that the sameadverse conclusion would without doubt have been justified. Nor am Isatisfied that, had the appellant received proper notice of the freshcharge, he could not, to use the words of Lord Porter, have set up anyfurther defence “ without stultifying himself ”. I would therefore holdthat an alteration of the charge at this stage should not be ordered bythis Court.t •-
X would quash the conviction of the appellant and make order acquittinghim. It is but fair to him to state that the appeal was argued on thehypothetical assumption that the findings of the learned Judge werejustified upon the evidence led at the trial. In the view which I have■taken, it is unnecessary to decide whether that assumption is justified.
L. M. D. de Silva J.—I agree.