THE accused Ivan Benson was charged summarily with the offence of unlawful wounding, and he pleaded not guilty thereto.The hearing was then postponed, and an indictable charge of felonious wounding was later instituted against Benson with respect to the same facts. He was thereafter committed to stand trial on the indictable charge of felonious wounding, and the summary charge was thereafter withdrawn.

The accused was subsequently indicted for wounding with intent and unlawful wounding. At his trial, he pleaded ‘autrefois acquit’.

The plea of autrefois acquit, which means the accused was contending that he had already been tried for the same offence, was successful because the magistrate had, at the summary trial, indicated on the case jacket that the matter had been withdrawn, which the trial judge at the Assizes found tantamount to a dismissal on the merits of the summary charge.

At the Criminal Assizes, presiding Judge Mr. Guya Persaud upheld the plea of autrefois acquit and freed the accused.

According to Justice Guya Persaud, Section 34 (1) of the Summary Jurisdiction (Procedure) Ordinance, Chapter 15, provides that the court shall give its decision “either by dismissing the complaint or by making such order against the defendant as the justice of the case requires.”
Section 34 (3) of the said Ordinance provides that if a complaint is dismissed on the merits, the defendant shall be entitled to a certificate of dismissal which, “upon production, shall be without further proof, a bar to any subsequent complaint for the same matter against the defendant.”

Justice Persaud held: (i) a dismissal on the merits, but not a dismissal for some technical informality, whether obtained in summary or indictable proceedings, is a bar to a subsequent indictment for the same offence or any offence for which the defendant could have been properly convicted on the trial of the first charge.

(ii) Under Section 34 (i) of Chapter 13, the magistrate could only convict or dismiss, and the withdrawal fell to be treated as a dismissal. Further, such dismissal, having resulted from the offering of no evidence amounted to a dismissal on the merits.

(iii) An accused person who can prove a previous acquittal or conviction by legally admitted evidence other than by a certificate of dismissal will not be debarred from availing himself of the plea of autrefois acquit or autrefois convict respectively.

The plea of autrefois acquit was upheld.

Mr. E. A. Romao, Senior Crown Counsel and David Singh, Crown Counsel, appeared for the Crown.

Mr. J. O. F. Haynes, Q.C., with him Mr. P. Persaud appeared for the defence.

Justice Persaud, delivering the judgment, said: “The accused Ivan Benson was charged before a summary court on the 17th July, 1961 with the offence of unlawful wounding, contrary to Section 30 (b) of the Summary Jurisdiction (Offences) Ordinance, Chapter 14, alleged to have been committed on the 14th July.

“He appeared in answer to the said charge on the 17th July before the Magistrate, when the charge was read to him and he entered a plea of not guilty.

“The hearing of this matter was then postponed to the 26th of July, 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.

“The accused was not required to plead to the new charge. While the summary charge was still pending, the preliminary [inquiry] into the indictable charge was heard, and the accused was committed for trial, on the 6th September, 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 Chapter 10, and it is upon this indictment that he has now raised the plea of autrefois acquit.

“After the accused had been committed for trial by the magistrate on the same day, the latter wrote under the heading ‘Judgment’ on that case jacket “WDN,” meaning to indicate 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 was withdrawn,” the judgment disclosed.

The following submissions have been made in support of the plea of autrefois acquit:

(1) That our laws do not contemplate such a procedure as a withdrawal of a charge in the magistrate’s court; that a magistrate may do one of two things – he may either convict or he may dismiss.

(2) That even if the 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

(3) 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.

(By George Barclay)