Court rejects autre fois acquit plea as distinct offences of sinking and possessing wells differ legally.

[*100] 1975 November 1

(DEMETRIOU, S.D.J.)

IN THE DISTRICT COURT OF PAPHOS

District Officer Paphos,

v.

Vassilou Georghiou and Others,

Accused.

(Criminal Case No. 2229/75).

Criminal Procedure - Special pleas - Autre fois acquit - Principles applicable - Charge of possessing a well sunk without a permit contrary to section 13(1) of the Wells Law, Cap. 351 - Previous acquittal of accused of offence of sinking a well without permit contrary to section 3(1) of the Law - Whether plea of autre fois acquit may be maintained.

E. Symillides, for the Prosecution.

P. Sivitanides, for the Accused.

DECISION

The following decision was delivered by:-

DEMETRIOU, S.D.J.: An interesting legal point [*101] was raised by the defence before the accused were called upon to plead. The charge they face is of possessing or using a well

sunk or constructed in contravention of section 3 of Cap. 351, i.e. without a permit from the District Officer, contrary to section 13(1) of the Wells Law, Cap. 351. In the particulars of the offence, the accused

are alleged to have in their unlawful possession for use a well in plot No. 69 at the locality "Rodies" of Nata village, without a permit from the District Officer of Paphos.

The point raised was by way of a special plea. Mr. Sivitanides submitted that the accused should not be called to answer this charge, because they were already tried and acquitted in Case No. 12/75.

Arguments were heard from both sides and the official record of the said case was duly produced by the clerk of the Criminal Registry. In the said case the present accused, together with two others, were charged with sinking a well without a permit, contrary to section 3(1) and 13. The case for the prosecution as shown in the particulars of the offence is that the accused in that village did sink by the use of a drilling machine, a borehole in plot No. 69, without first obtaining a well permit from the District Officer of Paphos.

It was argued on behalf of the accused that the Court which tried the first case could have found the accused guilty of the present offence, if facts [*102] justified the conviction for possessing or using the said well. Mr. Sivitanides submitted that in order to prove the present offence, the prosecution must establish also the previous offence, i.e. drilling, for which they were acquitted. He conceded at the same time that possession is a continuous offence and argued that if the prosecution could not prove the possession in the first case, they cannot be allowed to prove it in another case.

Mr. Symillides on the other hand stressed the difference between the two charge, and invited the Court to find that an acquittal in the first case should not be a bar to the present proceedings.

By section 69 of the Criminal Procedure Law, Cap.155, the accused may, before pleading to the charge, plead that they have been previously acquitted on the same facts for the same offence. This provision is in line with Article 12 of our Constitution, which provides that a person who has been acquitted of an offence shall not be tried for the same offence. Thus where a general verdict of acquittal on an indictment in respect of a crime would afford an accused to plead autre fois acquit for any offence of which he could have been convicted on that indictment. In D.P.P. v. Narsalia, (1967) 2 All E.R. 161, it was held that if a Jury brought in a general verdict of acquittal, the accused could thereafter maintain a plea of autre fois acquit in respect of every crime of which he could have been convicted on that indictment. [*103] Accordingly a general verdict of acquittal on an indictment for murder, would enable autre fois acquit to be maintained for manslaughter. Similarly a general verdict of acquittal is sufficient to found a plea of autre fois acquit for all alternative offences, whereas partial verdict of acquittal is sufficient only for crimes in respect of which the verdict was returned.

The question for the Court on the issue is whether the accused have been in jeopardy in respect of the charge of which they are charged, for the rule of law is that a person must not he put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify the conviction on the other, not that the facts relied on by the Prosecution are the same in the two trials.

This proposition was analysed at length in the case of United States Government v Atkinson, (1969) 2 All E.R., p. 1151, at p. 1156, where Lord Parker C.J. adopted the test put by Lord Morris of Borth-y-Gest in Connelly v. D.P.P.

(1964) 2 All E.R. p. 414:-

"It matters not that incidents and occasions being examined on the trial of the second indictment are precisely the same as those which were examined on the trial of the first. The Court is concerned with charges of offences or crimes. The test is, therefore, [*104] whether such proof is necessary to convict of the second offence would establish guilt of the first offence or of an offence for which on the first charge there could be a conviction. Applying to the present case the law as laid down, the question is whether proof that there was robbery with aggravation would support a charge of murder or manslaughter. It seems to me quite clear that it would not. The crimes are distinct. There can be robbery without killing. There can be killing without robbery. Evidence of robbery does not prove murder or manslaughter. Conviction of robbery cannot involve conviction of murder or manslaughter. Nor does an acquittal of murder or manslaughter necessarily involve an acquittal of robbery. Nor on a charge of murder or manslaughter could a man be convicted of robbery. That the facts in the two trials have much in common is not a true test of the availability of the plea of autre fois acquit. Nor is it of itself relevant that two separate crimes were committed at the same time so that in recounting the one there may be mention of the other".

Again further down in the same case, Bridge J. referred to the matter and adopted passage from the speech of Lord Devlin which reads as follows:- [*105]

"For the doctrine of autre fois to apply it is necessary that the accused should have been put in peril of conviction for

the same offence as that with which he is then charged. The word 'offence' embraces both the facts which constitute the crime and the

legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law. Robbery is not in law the same offence as murder (or as manslaughter of which the accused could also have been convicted on the first indictment), and so the doctrine does not apply in the present case. I would add one further comment. Lord Morris of Borth-y-Gest in his statement of the law, accepting what is suggested in some dicta in the authorities, extends the doctrine to cover offences which are in effect the same or substantially the same. I entirely agree with Lord Morris of Borth-y-Gest that these dicta refer to the legal characteristics of an offence and not to the facts on which it is based ".

Having directed my mind to the law on the subject I turn to, examine whether an autre fois acquit should be maintained in the present case. Let me first say before proceeding any further that I consider the cases as being based on two different offences. Section 3 [*106] of the Wells Law concerns itself with the sinking of a well or its construction. On the other hand, apart from prescribing the punishment for this offence s.13 creates new offences. This is made apparent from the language used in the section. It reads:-

"Any person who fails to comply with the provisions of s. 3 or 12 or with any conditions or who uses or possesses a well sunk or constructed in contravention of s.3 shall he guilty of an offence .......".

The marginal heading "Offences and penalties". lends support to this view. The question which should now be asked is this: Are the facts constituting the one offence sufficient to justify conviction on the other?" To my mind the answer should he in the negative. It is one thing to sink a well and another unlawfully to use it. The ingredients necessary to establish the first offence are not sufficient to justify the conviction on the other.

Coming now to a further submission of the defence that while the Court could have found the accused guilty of the present offence when trying the first one the autre fois acquit should be invoked at the present stage. I have given the matter serious consideration but bearing in mind the above authorities I find myself unable to agree.

Furthermore the two charges refer to

offences allegedly committed on different dates not to mention [*107] the fact that the one speaks of a well while the other in the

particulars refers to a borehole. Mr. Sivitanides argued that proof of the second offence will necessarily involve proof of the first one for which they were acquitted.

On the face of it one may incline to agree with such submission. If we take this view, however, the creation of the new offence under s. 13 would he meaningless in most cases and would lead to the unacceptable state of affairs whereby one may unlawfully use a well indefinitely once the secures an acquittal for its construction. Clearly the legislator did not have this in mind. The true interpretation to be given is that one may be acquitted for the construction of the offence but may be convicted for using it if the sinking or construction was unlawful. Take the case for instance where a well is sunk in a field unlawfully while the owner is away. He took no part in the commission of the offence under s.3, and is entitled to an acquittal. When he comes back to it and starts making use of it he should to my mind be answerable under the provisions of s. 13.

In view of all the above I resolve that the special plea of autre fois acquit cannot be maintained and I call upon the accused to plead to the charge.

Order accordingly.