Court holds charge not bad for duplicity where one count alleges one offence with multiple statutory elements.

[*320]1985 Jan. 28

(MILTIADOU, D.J.)

IN THE DISTRICT COURT OF PAPHOS

Medical and Public Health Services,

v.

Christis Farm, of Limassol,

Accused.

(Case No. 5539/84).

Criminal Procedure - Charge - Duplicity - Each count must only allege one offence - Review of authorities - The question whether a count is bad for duplicity is one of form and may be ascertained from the material allegations set out in the particulars of the offence charge - Statement of offence reading as follows, namely “Prohibition of Sale of Food (pasterized milk) not of the nature, substance or quality demanded, contrary to sections 4 (1), (26), 4 and 19 of Cap. 261...“, while the particulars of the offence read that “The accused .... did sell .... a quantity of pasteurized milk, which …… was not genuine, i.e. it was deficient by 26.6% in fat” - In the circumstances the Count is not bad for duplicity - Said count in conformity with section 39 (c) of the Criminal Procedure Law, Cap. 155.

K. Chrysostomou, for the Prosecution.

P. Mouaimis, for accused.

RULING

The following ruling was delivered by:-

MILTIADOU, D.J.:- An objection was taken by the accused before plea in the above case that the charge is bad for duplicity, in that, it charges the accused in one count of having committed three separate and distinct offences, namely -[*321]

(a) Sale of food not of the nature demanded;

(b) Sale of food not of the substance demanded; and

(c) Sale of food not of the quality demanded.

He cited in support two cases:-

Bastin v. Davies, (1950) 1 ALL E.R. 1095, in which an information was preferred against the respondent charging him with having sold to the prejudice of the purchaser a certain article of food which was not of the nature or not of the substance or not of the quality demanded, contrary to section 3 (1) of the Food and Drugs Act, 1938, which section is identical with our section 4(1) of the Food and Drugs Law, Cap. 261 and in which case it was held that the nature and the quality of an article of food being constituent elements of two different offences under section 3(1), the information was for more than one offence, contrary to s.10 of the Summary Jurisdiction Act, 1848, and,

Moore v. Ray and Another, (1950) 2 ALL E.R. 561, which, was again an information under section 3(1) of the Food and Drugs Act, 1938, and Bastin v. Davies case above was applied and adopted with approval, and he requested the Court to quash the charge.

It is elementary law that no more than one offence or various offences in the alternative may be charged in any one count of a charge; Each [*322] count must only allege one offence and if a count avers more than one offence is bad for duplicity. Independently of the fact that a charge so framed might hamper the defence, it is the real object of the rule, that, the defendant is entitled to know with precision with what he is charged and of what he is convicted a right which is now safeguarded by the constitution and which forms part of the fundamental rights of the accused.

There is a considerable volume of authority on the subject. In R. v. Surrey Justices Ex parte Witherick (1931) ALL E.R. Rep. p.807, Avory J. in his judgment at p.808, in an application for a writ of certiorari to bring up a conviction to be quashed on the grounds that two offences appear in the information and in the conviction under s.12 of the Road Traffic Act, 1930, said:

“It is not necessary to give illustration of how a person may be driving with due care and attention so far as his own safety is concerned, and yet driving without reasonable consideration for other persons. If it is possible to contemplate that a person may do one without the other, it follows as a matter of law that a conviction or information which charges him in the alternative is bad. It is an elementary principle that a conviction must not be for offences in the alternative, since if it were the defendant [*323] could not know with precision of what he was convicted and might be prevented in the future from pleading autrefois convict”.

In R. v. Disney, (1933) ALL E.R. Rep. p. 626, Lord Hewart, C.J. in his judgment at p.627 dealing with the matter of duplicity said:

“It was urged in the court below by the learned counsel for the appellant that the first count of the indictment was bad in as much as it charged the appellant with two offences, and counsel referred to the well known case of R. v. Molloy. The objection was overrulled, but it seems to us that it was a sound objection. The count alleged two offences in the alternative, and the verdict was entered on the indictment ‘Guilty to the first count’. It is impossible to say of what the appellant has been convicted”.

In Charles Wilyot (1933) 24 Cr. App. Rep. 63 - The Lord Chief Justice in his judgment at pp. 67 and 68 dealing with the matter of duplicity said:

“It is an elementary principle that an information must not charge offences in the alternative since the defendant cannot then know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois convict”.[*324]

In Joseph West, (1948) 32 Cr. App. Rep. p. 152 - Humphreys J. in his judgment at p.162 dealing with the matter of duplicity said:

“It is for these reasons that we hold that the indictment in this case charged, and necessarily charged, three separate conspiracies rolled into one count, and it is elementary law that no more than one offence may be charged in any one count of an indictment”.

And at p. 164 continues:

“It is an essential feature of the criminal law that an accused person should be able to tell from the indictment the precise nature of the charge or charges against him so as to be in a position to put forward his defence and to direct his evidence to meet them”.

Criminal procedures in Cyprus are regulated by the Criminal Procedure Law, Cap. 155; under section 2 of Cap. 155 a charge is an accusation in writing of an offence with which an accused person is charged in a summary trial or a preliminary inquiry.

The charge is divided into two parts, the statement of the offence and the particulars of the offence and the question whether there is duplicity in a count is a matter of form and can [*325] be ascertained from the material allegations set out in the particulars of the offence charged.

Section 37 of our law, Cap. 155, however, lays down certain provisions regarding the framing of the charges to which l will make mention to section 39(c) which reads as follows:

“The following provisions shall apply to all charges, and, notwithstanding any Law or rule of practice, a charge shall, subject to the provisions of this Law, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Law –

(a)……………………….

(b)……………………….

(c) the count in a charge shall describe the offence with which the accused is charged shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and it shall contain a reference to the section of the enactment creating the offence. When an offence consists of something which is forbidden by the joint effect of more enactments than one, the charge shall contain a reference to both such enactments and if the offence is defined by one enactment [*326] and punishment is provided for it by another enactment reference shall also be made to the enactment by which punishment is provided”.

The accused in the present case is charged with only one count of which the statement of offence reads as follows:

“Prohibition of Sale of Food (pasteurized milk) not of the nature, substance or quality demanded, contrary to sections 4 (1), (26), 4 and 19 of the Sale of Food and Drugs Law Cap. 261 and to the Sale of Food and Drugs amendment Regulations 1941 and section 3 (a) of Increase of Fines Law 1974”.

While the Particulars of the Offence read as follows:

“The accused on the 2nd day of April, 1984, at Paphos, did sell to the prejudice of one Georghios Minas, M. Nicolaidi, No. 21, Paphos, quantity of pasteurized milk, which according to the Government Analyst report, was not genuine, i.e. it was deficient by 26.6% in fat”.

Certainly the Statement of the Offence in the said Count does not only contain a mere reference, but a repetition of the whole section of the enactment creating the offence, but, in the particulars of the offence of the said count, undoubtedly it describes [*327] the offence with which the accused is charged shortly in ordinary language and without the use of any technical term.

I, myself, don’t see how the accused is charged with having committed three separate offences in the said count, on the contrary, I find that said count complies almost absolutely with section 39

(c) of Cap. 155.

I would like, however, to indicate, that I disapprove the practice adopted in drafting the said charge, to repeat the whole section creating the offence in the statement of the offence, in said count and not simply making reference to it, but, I am of the opinion that the defence in no way will be hampered or the accused will, in any way, be prejudiced by such practice.

In the result, the above objection taken by the accused is overruled.

Objection overruled.