Gobine and Another v Reginam (Criminal Appeal No. 49 of 1956) [1950] EACA 566 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and RUDD, J. (Kenya)

### (1) PHILIBERT LOIZEAU and (2) PAUL GOBINE, Appellants (Original Accused)

### REGINAM, Respondent

#### Criminal Appeal No. 49 of 1956

# (Appeal from the decision of H. M. Supreme Court of Seychelles, Bonnetard, Ag. J.)

Autrefois acquit—Previous trial held to be a nullity—Plea not available—Practice -Joinder of other charges with that for murder or manslaughter.

The appellants had originally been convicted of murder but on appeal it was held that the trial had been a nullity. They were subsequently charged with manslaughter, causing grievous bodily harm and affray. The first appellant was convicted of common assault and affray. The second appellant was convicted of manslaughter and affray. Their plea of *autrefois acquit* was rejected by the trial Judge.

Held $(24-8-56)$ .—(1) Where the first trial is held to be a nullity it is incorrect to say that the accused had been acquitted. The plea in bar was rightly rejected.

(2) Where the accused is charged with murder or manslaughter other charges should not be joined or tried at the same time.

Appeal dismissed.

Cases referred to: *Philibert Loizeau and another v. Reg.*, E. A. C. A. Cr. App. No. 348 of 1955 (*supra* p. 417), R. v. Gachuga, 17 E. A. C. A. 145; *Jones*, 13 C. A. R. 86; *Large*, 27 C. A. R. 65; R. v. Aikaeli, 21 E. A. C. A. 371.

Appellants absent, unrepresented.

#### Webber for respondent.

JUDGMENT (prepared by BRIGGS, Acting Vice-President).—These were two appeals from convictions by the Supreme Court of Seychelles. On 1st July, 1955, the appellants were convicted of the murder of one Abdul Mohamed Latif on 7th April, 1955, at Victoria, and were sentenced to death by the learned Chief Justice. In Criminal Appeal No. 348 of 1955 this Court held on 28th November, 1955, that the trial had been a nullity and the convictions and sentences were set aside. This Court was asked to order a retrial, or more correctly, that the appellants be tried, but declined to do so, leaving the question of future proceedings to the discretion of the prosecuting authority. On 27th December, 1955, the appellants were brought to trial on charges of manslaughter, causing grievous harm, and affray, in respect of the same transactions. The learned Chief Justice having very properly declined to try the case, Mr. N. P. F. Bonnetard, O. C., was appointed Judge *ad hoc*. He convicted the first appellant of common assault and affray, but acquitted him of manslaughter, and sentenced him to one year's simple imprisonment on each conviction, the sentences to run concurrently. He convicted the second appellant of manslaughter and sentenced him to five years' imprisonment with hard labour, and also convicted him of affray and sentenced him to one year's imprisonment with hard labour, the sentences to run concurrently, Both appellants had raised a plea in bar of autrefois acquit, which the learned Judge rejected.

No application was made at the conclusion of the trial for a certificate that the case was fit for appeal on grounds of fact or mixed law and fact. At a later date it was desired to make such application to the trial Judge, but since he

was then functus officio this could not be done. In consequence, application for leave to appeal on such grounds was made to us in the first instance. Although no grounds of substance were shown, we granted the applications, since we could not feel sure that the learned trial Judge would not have granted certificates, and it seemed unfair that the appellants should lose any advantage through being unable to apply to him. The first appellant also applied for leave to appeal against sentence, but the second appellant did not so do.

Only one point of law was raised by the appellants, that the learned trial Judge was wrong in rejecting the plea in bar. We thought he was undoubtedly right. Where, as in this case, the first trial is held to be a nullity and the convictions and sentences are set aside, they no longer exist for any purpose. It is quite incorrect to say that the appellants were, by reason of this Court's judgment, acquitted of the murder. This Court merely said that they had never lawfully been tried for it at all.

On the facts, we were of opinion that there was ample evidence to support the learned Judge's findings, and that no material misdirection could be shown.

As regards the sentences passed on the first appellant, we thought that the learned Judge had addressed his mind to the right considerations and that the sentences could not be said to be manifestly excessive. We accordingly rejected the first appellant's application for leave to appeal against sentence and dismissed both appeals.

There is, however, one other point to which we must refer. The charges of causing grievous harm were in this case unnecessary, since convictions for that offence or for the minor one of assault could have been had under the charge of manslaughter, and it could not have been proper to convict both of manslaughter and of causing grievous harm to the same victim at the same time. The charge of affray, on the other hand, raised issues quite distinct from those arising on the first two charges, for example, the question whether the events occurred in a public place. It has been held repeatedly that where an accused. person is to be tried for murder or manslaughter other charges should not be joined or tried at the same time. Gachuga, 17 E. A. C. A. 145. Jones, 13 C. A. R. 86. Large, 27 C. A. R. 65. Aikaeli, Cr. App. No. 785/54, unreported. We think this rule should be strictly observed. In this case, however, the whole of the evidence on which the convictions of affray were based would have been admissible on the charge of manslaughter. That being so, we considered that no prejudice had resulted; but we would draw attention to the following passage from the judgment in Aikaeli's case, which shows that such joinder may in many cases render a conviction irregular:-

"The basis of this rule (i.e. that other counts should not be joined on a trial for murder or manslaughter) is that a trial on a charge of that nature is so 'serious and complicated' that the defence ought not to be embarrassed by the necessity of dealing at the same time with other matters, whether of equal or minor gravity. The rule in our opinion ought to be followed in Tanganyika and ought to be regarded as a rule of practice amounting almost to a rule of law. We should not necessarily be prepared to set aside a conviction for breach of the rule if it were clear that no prejudice had resulted, especially if it appeared that all the evidence given for the prosecution would have been admissible in support of the principal charge; see $R$ . $v$ . Davies, 26 C. A. R. 95: but the question of prejudice must be considered in such a case with great care, and we think in this case prejudice was caused."

The convictions of manslaughter against Aikaeli were held to be unsatisfactory and were quashed. If the prosecution insists on putting forward charges which contravene the rule, the Court should proceed on the count of murder or manslaughter only, leaving the other counts on the record.