BASNAYAKE, CJ.—The Queen v.Geedrick
[In the Court of Criminal ArpealJ
Present: Basnayake, C.J. (President), K. D. de Silva, J., andH. N. G. Fernando, J.THE QUEEN v. K. GEEDRICK
Appeal 89 of 1959, with Application 108
S. C. 37—M. G. Galle, 5486
Trial before Supreme Court—-Plea of autrefois acquit or convict—Judge must allowit to be tried by the jury—Criminal Procedure Code, ss. 216, 330, 331.
In a trial before the Supreme Court, a plea of autrefois acquit or convict mustbe tried by the jury.
Appeal against a conviction in a trial before the Supreme Court.
M. L. de Silva, with Douglas Wijeratne and N. Wijeratne (assigned),for Accused-Appellant.
V. S. A. Pullenayegum, Crown Counsel, for the Crown.
September 8, 1959. Basnayake, C.J.—
The accused-appellant was indicted on the following five charges,all of which related to the theft and illegal removal of property fromthe premises of M. P. Gomez and Company, Galle :—
“ 1. That on or about the 28th day of May 1958 at Havelock Place,Galle, in the division of Galle, within the jurisdiction of this Court,you did commit theft in the premises of M. P. Gomez & Co., Galle,
BASNAYAKE, C.J".—The Queen v. Qeedrick
which had been left vacant and unprotected* of articles, to wit, OneSaucepan, One Tiffin Carrier, Two Pillows, One Blanket, Four Towels,Two Shirts, One Rug, Five Sarongs, One Suspender, One Hand Sawand Three Handkerchiefs, property in the possession of SanthosamThomas, and that you are thereby guilty of an offence against Regula-tion 22 of the Emergency (Miscellaneous Provisions and Powers)Regulations published in Government Gazette No. 11,321 of the 27thMay, 1958, and made by the Governor-General under Section 5 ofthe Public Security Ordinance No. 25 of 1947 as amended by ActNo. 22 of 1949 and Act No. 34 of 1953, punishable under Regulation 22of the said Regulations.
“ 2. That at the time and place aforesaid and in the course of thesame transaction you did commit theft in the premises of M. P. Gomez& Co., Galle, which had been left vacant and unprotected, of articles,to wit, seven bottle-openers, property in the possession of J. L. Hevottaand that you are thereby guilty of an offence against Regulation 22of the said Regulations, punishable under Regulation 22 of the saidRegulations.
“ 3. That at the time and place aforesaid and in the course of thesame transaction, you did illegally remove articles, to wit, the articlesset out in Charges 1 and 2 above from the said premises and that3tou are thereby guilt}* of an offence against Regulation 22 of thesaid Regulations, punishable under Regulation 22 of the saidRegulations.
“ 4. That at the time and place aforesaid and in the course of thesame transaction you did, in a building used for the custody of property,to nut, the said premises of M. P. Gomez & Co., commit theft of OneSaucepan, One Tiffin Carrier, Two Pillows, One Blanket, Four Towels,Two Shirts, One Rug, Five Sarongs, One Suspender, One Hand Sawand Three Handkerchiefs, property in the possession of the saidSanthosam Thomas and that you have thereby committed an offencepunishable under Section 369 of the Penal Code.
“ 5. That at the time and phice aforesaid and in the course of thesame transaction you did, in a building used for the custody of property,to wit, the said premises of M. P. Gomez & Co., commit theft of sevenbottle openers, property in the possession of J. L. Devotta, and thatyou have thereby committed an offence punishable under Section 369of the Penal Code.”
After the indictment was read and explained to him the accusedpleaded “ not guilty ”. Thereafter an English speaking jury wasempanelled. At the request of counsel for 'the defence the learnedtrial Judge directed the jury to retire. After they had retired counselmade the following submission :—
“ In addition to the plea of ‘ not guilty ’ the accused also saysthat by virtue of Section 330 of the Criminal Procedure Code he isnot liable to be tried in respect of charges 4 and 5 of this indictment.
BASNAYAKE, C.J.—The Queen v. Qeedrick
“ The accused has been charged and convicted in the Magistrate’sCourt of Galle in case No. 6194 under Regulation 40 of Gazette No. 11,376of 27.6.1958 of the same articles except that instead of two pillowstwo bottles are mentioned in this case, and sentenced to 3 months’rigorous imprisonment, which he has served.
“ I wish to add that that conviction is a bar to these two charges.”
After hearing Crown Counsel and defence counsel the learned trial Judgemade the following order :—
“ The preliminary issue which I have, to decide is whether theprevious conviction of the accused of an offence under Regulation 40of the Regulations published in the Government Gazette of June 27th1958 has a bearing to his being tried again in respect of counts 4 and 5of the indictment. It is common ground that the same articles areinvolved in both cases and the crucial question is whether the ingre-dients of the offences covered by Regulation 40 are such that thecase is covered by Section 181 of the Criminal Procedure Code. Onepoint on which the Regulation differs from the Section of the PenalCode relating to theft and dishonest retention of stolen property isthat dishonesty is not an element in the Regulation. Again, it wouldbe necessaiy if the charge was under the Penal Code for the prosecutionto prove beyond reasonable doubt that the articles were in fact stolen,whereas under the Regulation it is sufficient if the articles^ire suspectedto have been stolen. There is, therefore, it seems to me a very realdistinction between the offences covered by Regulation 40 and thecrime of theft or dishonest retention of stolen property. I, therefore,over-rule the plea. The accused would be tried on all counts of theindictment.”
The question that arises for decision is whether it was within thecompetence of the learned trial Judge to try the plea of autrefois convict.
A plea of autrefois acquit or ^convict is a plea that must be specially takenas prescribed in section 331 of the Criminal Procedure Code and triedbefore the plea on the indictment is tried. Sub-section (2) of thatsection reads :
“ Such plea may be pleaded together with any other plea, but theissue raised by such plea shall be tried and disposed of before theissues raised by the other pleas are tried.”
Now section 216 of the Criminal Procedure Code provides that all trialsbefore the Supreme Court shall be by jury before a Judge or a Commissionerof Assize. The trial of a plea of autrefois acquit or convict is no exceptionto the rule laid down by the Code. In the instant case the learnedJudge was acting without jurisdiction in trying the plea himself andnot allowing it to be tried by the jury. As this is a matter for whichthe Code makes express provision there is no need to examine the lawof England but I wish to add that the practice in England is that thesepleas are tried by the jury. (Archbold Criminal Pleadings, Evidenceand Practice, 34th Ed., s. 447, p. 153.)
WEERASOORIYA, J.—Uklcu Ammo v. Paramanalhan
In regard to trial upon the indictment the accused has been acquittedon counts 1, 2 and 3, all of which depend on the inference which mayproperly be drawn from the recent possession of property which hadbeen stolen from M. P. Gomez and Company. It is difficult to reconcilehis acquittal on counts 1, 2 and in particular count 3, with his convictionon counts 4 and 5. We think that his convictions on counts 4 and 5are unreasonable and we accordingly quash those convictions and directthat a judgment of acquittal be entered in respect of counts 4 and 5.
THE QUEEN v. K. GEEDRICK