IN 1961, accused Ivan Benson appeared at a magistrate’s court and pleaded not guilty to a summary offence of unlawful wounding. On the day of the hearing, he learnt that the police had withdrawn the summary charge and had instituted an indictable charge for felonious wounding.

At conclusion of the preliminary inquiry (PI) into the indictable charge, the magistrate committed Benson to stand trial for felonious wounding.

At commencement of the trial for felonious wounding, Benson was represented by Mr. J. O. F. Haynes, Q. C., who raised the plea of autrefois acquit – meaning that the accused had already been acquitted for the same offence.

After hearing arguments  from Queen’s Counsel Haynes for the applicant, and the Director of Public  Prosecutions, Mr. E. Romao, for the Crown, Justice Guya  Persaud declared that the  plea was well founded, and directed the jury to uphold the plea of autrefois acquit.

According to the facts of the case, Benson was charged before a court of summary jurisdiction with the offence of unlawful wounding, contrary to Section 80(b) of the Summary Jurisdiction (Offences) Ordinance, Chapter 14 (BG).    He pleaded not guilty before the court, and a date for hearing of the case was fixed by the magistrate.
On the date so fixed, an indictable charge for felonious wounding, contrary to Section 57(a) of the Criminal Law (Offences) Ordinance, Chapter 10 [BG] was instituted against Benson in respect of the same facts.

While the summary charge was still pending, a preliminary inquiry into the indictable charge was heard, and Benson was committed to stand trial. Thereupon, the magistrate wrote “Wdn” under the heading “Judgment” on the case jacket relating to the summary charge, thus indicating that the summary charge had been withdrawn.

Benson was subsequently indicted for wounding with intent and unlawful wounding, contrary to Sections 57(a) and 50 respectively of Chapter 10 [BG].

To this indictment, Benson pleaded autrefois acquit.

The Judge held: (i) That Section 84(i) of the Summary Jurisdiction (Procedure) Ordinance, Cap. 15 [BG], which provides that a magistrate’s court, acting in the exercise of its summary jurisdiction, shall give its decision “either by dismissing the complaint or by making such order as the justice of the case requires” did not include  withdrawal of the proceedings;

(ii)That what the magistrate did in this case was in effect to dismiss the complaint for the summary offence; and the dismissal, having been the result of the offering of no evidence, was a dismissal on the merits and a bar to the subsequent indictment.

The plea of autrefois acquit was upheld.

The judge referred to 14 cases as he sought to deal with the plea of autrefois acquit to the indictment which charged the applicant with wounding with intent and unlawful wounding.

In delivering his judgment, Justice Guya Persaud said the accused, Ivan Benson, was charged before a summary court, on July 17, 1961, with the offence of unlawful wounding, contrary to Section 80(b) of the Summary Jurisdiction (Offences) Ordinance, Chapter 14 [BG], alleged to have been committed on July 14, 1961.

He appeared in court on July 17 to answer to the said charge before the magistrate who read the charge to him, and he entered a plea of not guilty.

The hearing of this matter was then postponed to July 26, on which day the police instituted an indictable charge for felonious wounding, contrary to Section 57(a) of the Criminal Law (Offences) Ordinance, Chapter 10 [BG].

The accused was not required to plead to the new charge.  While the summary charge was still pending, preliminary inquiry into the indictable charge was heard, and the accused was committed for trial on September 6, 1961.

He was subsequently indicted  by the Director of Public  Prosecutions for wounding  with intent and unlawful  wounding, contrary to Sections 57(a) and 50 respectively of the Criminal Law (Offences) Ordinance, Chapter 10 [BG]; and it is upon this indictment that he has now raised the plea of autrefois acquit.

After the magistrate had committed the accused for trial, he wrote on the case jacket under the heading “Judgement” the letters “Wdn”, indicating that the summary charge had been withdrawn. It is accepted on all sides that both charges related to the same set of facts.

From the magistrate’s minute in the summary case, it is apparent that the accused was committed on the indictable charge before the summary charge had been withdrawn.

The following submissions have been made in support of the plea of autrefois acquit:
(i)That our laws do not contemplate such a procedure as a withdrawal of a charge in the magistrate’s court. A magistrate may do one of two things: he may either convict or dismiss;

(ii) That even if a magistrate has power to permit a case to be withdrawn, and the case is withdrawn on the failure to lead evidence, that withdrawal is tantamount to a dismissal on the merits;

And (iii): Assuming that the summary charge was in fact a dismissal on the merits, the accused may still avail himself of the plea, even if a subsequent charge is instituted in which an intent is alleged.

On behalf of the Crown, it has been urged that, before an accused person can avail himself of this special plea, he must submit a certificate of dismissal under Section 34(3) of Chapter 15 [BG] that a conditional discharge would not support the plea of autrefois acquit, and that the magistrate had no power to allow the summary charge to be withdrawn; that he acted in excess of his jurisdiction in so doing, and that that excess of jurisdiction cannot be pleaded in the bar.

It is further urged, on behalf of the Crown, that to avail himself of the benefit of this plea, the accused must fall within the stipulations of Section 109 of the Criminal Law (Offences) Ordinance, Chapter 11 [BG].

As is to be expected in a matter of this sort, decided  cases are not lacking; and counsel on both sides have been quite helpful in bringing to my attention  several cases, many of which I propose to refer to in the course of my decision.

Put shortly, the principle on which the right to plead autrefois acquit depends is that a man may not be twice put in jeopardy for the same offence. This is not the same as saying that, from one given set of facts, two or more offences may not have been committed.

According to Justice Persaud, “The law does not permit a man to be twice (put) in peril of being convicted of the same offence. If therefore he has been acquitted — that is, found to be not guilty of the offence by a court competent to try him — such acquittal is a bar to a second indictment for the same offence.
“This rule applies not only to the offence actually charged in the first indictment, but to any offence of which he could have been properly convicted on the trial of the first  indictment,” Justice Persaud said; and added: “In the result, I find that the dismissal on the merits of the summary charge is a bar to the subsequent indictment. The plea is well founded, and I propose so to direct the jury.  The plea of autrefois acquit is upheld.”