Payet v R (SCA 3 of 1993) [1994] SCCA 27 (25 March 1994)

IN THE SEYCHELLES COURT OF APPEAL EDWARD PAYET V. THE REPUBLIC Criminal Appeal No. 3/93 Mr. Boulle for the appellant Mr. De Liverra for the Republic JUDGMENT convicted on an indictment containing two charges of murder under counts 2 and 3 and appellant was The under counts 4, 5 and 6 on the following charges - entering a dwelling house with intent to commit a felony; robbery with violence; and (6) unlawful use of vehicle. He has appealed against his conviction and sentence in respect of counts 4, 5 and 6 on the only ground that the trial Judge sitting with a jury was not competent to try and convict him on the charges under those counts. We have already ruled that the appeal should be allowed, the convictions under those counts be quashed and the sentences passed thereunder be set aside. We shall now give reasons for our judgment. Mr. Boulle submitted that under section 220 of the Criminal Procedure Code, as amended by Act No. 5 of 1982, a jury trial is restricted to cases of murder or cases where on conviction an accused has to suffer the death penalty. He that counts 4, 5 and 6 should accordingly not have submitted been tried by the judge sitting with a jury. In reply, Mr. Fernando submitted that section 220 of the C. P. C. should not be interpreted so restrictively and that it would be competent for a judge sitting with a jury to try other offences in an indictment provided it includes a We charge of murder or one involving capital punishment. find this submission very ingenious but we are unable to One would be faced with an agree with this incongruous situation if for some reason or other the charge reasoning. of murder or one involving capital punishment is withdrawn. The jury would then be called upon to give a verdict exclusively on offences for which it would not have been competent to do so. Were we to accept Mr. Fernando's submission we would have to import additional words in section 220 of the This we are not empowered to do as we would thereby C. P. C. rather than interpret. On the other hand, it is a legislate principle that where there are several well established counts in an indictment a jury has to be directed that every count must be examined separately and independently of any Accordingly all counts in an indictment are other count. mutually exclusive and must be regarded as separate cases. There has thus been non-compliance with section 220 of C. P. C. by the inclusion therein of offences under counts 4, 5 and 6. It was submitted that a liberal interpretation of section 220 of C. P. C. did not contradict its marginal note which, it was conceded, would limit trials by jury to cases of murder or those involving capital punishment if it were to form part of the Interpretation and note to a section section but by virtue of section 7 of the General Provisions Act 1978 the marginal is for convenience or reference only and accordingly cannot be taken into account. It is trite may refer to any relevant matter which would afford guidance in interpreting a section of an enactment in the event of an ambiguity as was we would have been empowered to suggested law that Fernando, by Mr. Court a look at the marginal note which clearly restricts trials by jury to murder cases or cases involving capital punishment. that the Our conclusion Prosecution should not be construed as implying is at liberty to split a case and of prosecutions based on the same On the contrary such a course is frowned upon and In this connection the a multiplicity institute facts. may constitute an abuse of process. folowing Jeopardy, entrusted from Friedland's book Double passage 1969 ed. at p. 162 affords clear guidance to those with responsibility for the institution of criminal Professor proceedings- is that a cases multiplicity well-established principle "It civil proceedings two be prejudicing waste of facilities, provides results, unnecessarily harasses the defendant. in of should be avoided. To permit actions when both could conveniently tried same time without the parties is a court expense, inconsistent importantly, causes opportunities at either of needless for resources and judicial most and, the a legislative In view of these considerations, coupled direction in the with Acts that multiplicity of legal Judicature to be avoided, the Courts proceedings in civil have attempted to develop to prevent a plaintiff from doctrines unreasonably case. Whatever the the first action may be, a plaintiff cannot maintain a result in are cases splitting his ! , I second action fpq_ n additional part of the at action, whether it omitted at was orig±nal cause purposefully or,negligently , the first trial. in "it his the case often strain of multiple than multiple civil actions. is such a rule 'is required in civil If actions it is even more necessary in criminal proceedings because in many cases prosecutions is the greater The accused kept in custody pending second trial and he will normally have the first disclosed To repeat again what Holmes proceeding. said: cannot be that the once J the person, so often and so safeguards of mentioned with solemn reverence, rightly than those that protect from a are less in debt. liability Whereas the defendant civil action can be compensated in in a for unwarranted harassment, this is costs In not addition, policy requires given course of that all determined, if illegal possible, for example, the threat of a further prosecution may well Moreover, interfere with rehabilitation. a inconsistent particularly in criminal cases, results, and will confidence of Finally, a inherent in multiple principal proceedings is that an innocent person may guilty or be convicted on a plea of plead not guilty." criminal penal aspects of a conduct at one in sound be time; permits respect command public. system danger cases. which done not the a In the present case, however, the legislature has in our view, very wisely made statutory provision for a deroOtion from the rule against the splitting of a case in trials by a judge sitting with a jury. The inclusion of non capital charges in an indictment is apt to create confusion for the jury and may inhibit the speedy or orderly administration of justice. A M SILUNGWE Justice of Appeal E 0 AYOOLA Justice of Appeal L E VENCHARD Justice of Appeal