-indicted by A.G. for additional offences
IN the Criminal Appellate Jurisdiction in 1960, the Federal Supreme Court upheld a High Court decision, which had found that the Attorney General acted correctly when he indicted the accused, Insanally, with three additional offences to the one he was originally committed to stand trial for.
According to the judgment of the Federal Court, constituted by Chief Justice Hallinan and Justices Rennie and Marnan, the record of the evidence taken by the magistrate at Insanally’s preliminary inquiry, showed that Insanally who was committed to stand trial for larceny by a public servant, was also linked to Forgery, Uttering a forged instrument, Larceny as a public officer and falsification of public accounts.
The Federal Court found that the law had given the Attorney General the discretion to indict for additional offences as shown by the record, and that the A.G. acted accordingly.
At his trial, Insanally was convicted on all the counts and was sentenced by the trial judge.
Insanally, represented by Mr. J.O. F. Haynes, SC, appealed the decision.
The Federal Court dismissed the appeal and affirmed the convictions and sentence.
Section 113 of the Criminal Law (Procedure) Ordinance, Chapter 11 [ B.G], which gave the A.G. the authority to act, is also available to the Director of Public Prosecutions, (DPP) in similar circumstances.
The facts disclosed that the accused was charged on an indictment containing four counts.
The first count charged him with forgery, the second with uttering a forged instrument, the third with larceny as a public officer and the fourth with falsification of public accounts.
At the preliminary inquiry before the magistrate, only one offence, that of larceny by a public servant, was charged on the information.
He was committed on that charge , but in the course of the inquiry ,evidence was taken that disclosed the commission of the three other offences charged in the indictment.
‘Legal and proper’
Section 113 of the Criminal law (Procedure) Ordinance, Chapter 11 [B.G.], provides that the Attorney General, if he sees fit to do so, shall institute those criminal proceedings in the court against the accused person which to him seem legal and proper.
Defence submission was made that counts one, two and four should be quashed.
The Federal Supreme Court held that the Attorney General has a discretion to include in the indictment any offence disclosed by the depositions.
Crown Counsel Mr. E. A. Romao, appeared for the Crown.
Chief Justice Hallinan, who delivered the judgment of the Court, said: “In this case, the appellant was committed for trial by the magistrate for the offence of larceny by a public officer under Section 185 of the Criminal Law (Offences) Ordinance [B.G.].
“The Attorney General indicted the appellant on four accounts, forgery, uttering, larceny and falsification of accounts.
“The only ground of appeal argued before us was that the Attorney General had no power to indict the appellant for offences other than those upon which he was committed for trial.
“The powers of the Attorney General are contained in Section 113 of the Criminal Law (Procedure) Ordinance, Chapter 11 [B.G.], which provides as follows:
“On receipt of the document relating to the preliminary inquiry , the Attorney General, If he sees fit to do so, shall institute those criminal proceedings in the court against the accused person which to him seem legal and proper.”
Continuing his judgment, the Chief Justice added: “Counsel for the appellant submitted that the discretion of the Attorney General under that section was fatal by the tone of other provisions of the Ordinance and he has referred us to those sections which deals with the issue of summonses or warrants by the magistrate upon receiving a sworn information, and with the magistrate’s power to commit an accused person for trial.
“As we apprehend his argument, it amounts to this :that because the word “change” is used in relation to the information and to the order of committal and in relation to the indictment , that the offence mentioned in the order of committal and in relation to the indictment , that the offence mentioned in the order of committal and in the indictment must be that contained in the information.
“It would be absurd to restrict the offences charged in the indictment to those mentioned in the sworn information which is often the information of a layman and before any judicial inquiry has been made and the depositions taken .
“Counsel for the appellant concedes that there may be some departure in the order of committal from the charge in the information as also some departure in the offence charged on the indictment from that contained in the order for committal. He does not appear to be able to define the extent to which departure from the charge contained in the information would be justified.
“We are unable to accept this document and can see no reason why the direction of the Attorney General under Section 113 should be so limited.
“Under Section 78 , where the magistrate instead of committing an accused person for trial, deals with him summarily , the Attorney General may on receipt of the depositions , direct the magistrate to deal with the accused person as he, the Attorney General, thinks proper. It would be incongruous if the Attorney General be given this power and at the same time be fettered by a charge on which the magistrate commits an accused person for trial.
The very wording of Section 113 implies a wide discretion: The Attorney General shall institute proceedings (if he sees fit to do so) which to him seem legal and proper.