Rosemalecocq v. Kaluwa.
Present: Abrahams C.J.
ROSEMALECOCQ v. KALUWA.
430—P. C. Matale, 16,521.
Misjoinder of charges—Illegality of trial—Acquittal of accused ineffective—
Appropriate order to be made—Order of discharge.
Where two persons were charged together, the one with manufacturingtoddy without a licence in breach of section 14 (a) of the Excise Ordinanceand the other with failing to give information of the illicit manufactureof fermented toddy on a land in breach of section 40 of the ExciseOrdinance,—
Held, that the joinder of the two charges in one trial was illegal.
In such a case an appropriate order to be made would be to set asidethe conviction and discharge the accused, which is the only alternativecourse to ordering a retrial
Mendis v. Kaithan Appu (37 N. L. R. 285) and Marambe v. Kiriappu(2 C. L. W. 122) referred to.
374ABRAHAMS C.J.—Rosemalecocq v. Kaluwa.
^^PPEAL from a conviction by the Police Magistrate of Matale.
Cyril E. S. Perera (with him G. E. Chitty), for accused, appellant.
M. F. S. Pulle, C.C., for complainant, respondent.
November 4, 1936. Abrahams C.J.—
The appellant was charged with manufacturing fermented toddywithout a licence in breach of section 14 (a) of the Excise Ordinance,No. 8 of 1912. He was convicted and sentenced to a fine of Rs. 35, or indefault one month’s rigorous imprisonment. He was tried together withanother man against whom the charge was laid as follows : —
“ In the alternative the second accused being the tenant or under-tenant of the land called Pansalakumburewatta did fail to give informa-tion of the illicit manufacture of fermented toddy on the said land byDeewillalegedera Kaluwa in breach of section 40 of the Excise Ordi-nance, No. 8 of 1912, and thereby committed an offence punishableunder section 43 (b) or 47 of the Excise Ordinance, No. 8 of 1912. ”
What the Excise Inspector who presented these charges meant by“ In the alternative ”, I do not know and cannot fathom. I understandthe Excise Department manages its own prosecutions, and if Governmentdepartments follow such a practice, without getting legal advice as to theform and validity of the charges they present, they must expect to maketechnical errors and to encourage convicted persons to appeal to theincrease of work of the Supreme Court, which has so happened here sincethe appellant objects that these two charges could not be validly joinedtogether and therefore that the trial was illegal.
I agree with the submission that the trial was illegal, and indeed Counselfor the Crown does not contest the point. It was also submitted for theappellant that the evidence does not support the conviction, but since thetrial is invalid it will be useless for me to go into the facts.
The question now for my decision is what will be the appropriate orderto make. Counsel for the appellant submits that it will be unfair toorder a new trial. Counsel for the Crown, on the other hand, urges thatthese violations of the Excise laws ought to be punished and asks that anew trial should be ordered. I can no doubt order a new trial. On theother hand, if I do not make any order for a new trial, can I prevent theprosecution of the appellant on the same facts ? If I have the power tomake an order of acquittal, that would prevent the appellant being putupon his trial again. Counsel for the appellant argues that I can makean order of acquittal. He cites to me the case of Mendis v. KaithanAppuhamy1 where Drieberg J., following Macdonell C.J. in Marambe v.Kiriappu2 allowed an appeal and acquitted the appellant on the groundthat to send the case back for retrial in such circumstances as those whichexisted in the case in question would encourage slackness and inexactitudeon the part of prosecutors. I have not examined either of those casesvery closely, because if the learned Judges who tried those cases are to betaken to have implied that an Appellate Court would acquit in a case
> 37 N. L. R. 285.
* 2 C. L. W. 122.
ABRAHAMS C.J.—Wijeysinghe v. Josi Nona.375
where a trial was void I should respectfully differ from them as, in myopinion, any illegal trial is no trial at all, and, therefore, an acquittal■either by the trial Court or an Appellate Court would be ineffective.See the cases of Rami Reddi and Seshu Reddi1 and Emperor v. JethalalHurlochand It seems to me, however, that both in the case of Mendis v.Kaithan Appuhamy (supra), and that of Marambe v. Kiriappu (supra),the trial was only defective and not necessarily illegal.
Without saying that in no circumstances ought a Court of Appeal toorder a new trial where it sets aside a conviction on the ground that thetrial was bad, in this instance I do not propose to offer any commentson the merits of a case which has not been legally tried and I set aside theconviction and order the appellant to be discharged, which is the onlyalternative course to ordering a retrial which is open to me.
ROSEMALECOCQ v. KALUWA