IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISC. CASE NO. HAM0033 OF 2004S

Between:

VILIAME SAVU
Applicant

And:

THE STATE
Respondent

Hearing: 3rd June 2004
Ruling: 7th June 2004

Counsel: Mr. S. Naqase for Applicant
Mr. G. Allen with Ms A. Prasad for State

RULING ON AUTREFOIS CONVICT
AND ABUSE OF PROCESS

The Applicant who is the 5th accused on the Information pleads autrefois convict. He says that when he was convicted, by Gates J in HAC0010.2002S, for the offence of misprison of treason, he was convicted on the same facts, in respect of the same offending, as is the subject of the present Information. He asks to be discharged in respect of the Information. The other accused persons in this case, agree with, and support his application.

The Applicant was tried in December 2002, on a charge which read as follows:

Statement of Offence

MISPRISON OF TREASON: Contrary to Section 52(b) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME LEQA SAVU between the 18th day of May 2000 and the 19th May 2000 at Suva in the Central Division knowing that George Speight and others intended to commit treason did not give information thereof with all reasonable despatch to the President, the Minister, or to a Magistrate or Police Officer or use other reasonable endeavours to prevent the commission of the offence.

Section 52 of the Penal Code provides that:

“Any person who –

(a)	becomes an accessory after the fact to treason; or

(b)	knowing that any person intends to commit treason, does not give information thereof with all due dispatch to the Governor-General, the Minister or to a magistrate or police officer or use other reasonable endeavours to protect the commission of the offence,

is guilty of the felony termed misprison of treason, and is liable to punishment for life.”

The charge now facing the Applicant reads as follows:

COUNT SIX

Statement of Offence

TAKING AN ENGAGEMENT IN THE NATURE OF AN OATH TO COMMIT A CAPITAL OFFENCE: Contrary to Section 5(b) of the Public Order Act, Cap 20 read with Section 50 of the Penal Code, Cap 17 (as it was at 20 May 2000).

Particulars of Offence

VILIAME SAVU on the 20th day of May 2000 at Veiuto, Suva in the Central Division, not being a person compelled to do so, took an engagement in the nature of an oath purporting to bind the said VILIAME SAVU to commit an offence then punishable by death, namely treason.

The offence of treason was originally a common law offence. Gates J in his ruling on an application to quash the information in State v. Savu (supra) said that the essence of treason is betrayal. In R v. Dowling (1848) Cox CC 509, Erle J in his summing up to the jury said:

“The meaning of the part of the 1st count of the indictment, which charges the prisoner with the intention of levying war against the Queen, and compelling her by force to make the changes in the Constitution … if you are satisfied that the prisoner has, with others, intended to use force to prevent the government from the free exercise of any of its lawful powers, the prisoner must be considered as having the intention under the statute to levy war against the Queen.”

In his ruling on the element of the offence of misprison of treason, Gates J said, at p.23:

“The first element that the prosecution must prove is “that George Speight and others intended to commit treason” … The second element is that the Accused must be shown to have knowledge of the intention of others to commit treason. Thirdly it must be proved that the Accused omitted to give information of this intended treason to the relevant authorities.”

The Applicant was sentenced to two years imprisonment after the assessors returned unanimous opinions of guilty. The question is whether he is now to be tried for the same offence.

Section 28(1)(k) of the Constitution provides that every person charged has the right “not to be tried again for an offence of which he or she has already been convicted or acquitted.”

Section 279(a) of the Criminal Procedure code provides:

“Any accused person against whom an information is filed may plead –

(a)	that he has been previously convicted or acquitted, as the case may be, of the same offence.”

These provisions restate, some might say in a more restrictive form, the common law principle autrefois convict or acquit explained in some detail by the House of Lords in Connelly v. DPP (1964) AC 1254 in relation to a first indictment for murder after which the conviction was quashed on appeal, and a subsequent indictment on the same facts, for robbery. Lord Morris of Borth-y-Gest set out the common law principles thus:

“(1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted;

(2) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted.

(3) that the same rule applies if the crime in respect of which he is being charged is in effect the same, or is substantially the same, as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted;

(4) that one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty;

(5) that this test must be subject to the proviso that the offence charged in the second indictment had in fact been committed at the time of the first charge; thus if there is an assault and a prosecution and conviction in respect of it there is no bar to a charge of murder if the assaulted person later dies;

(6) that on a plea of autrefois acquit or convict a man is not restricted to a comparison between the later indictment and some previous indictment or to the records of the court, but that he may prove by evidence all such questions as to the identity of persons, dates and facts as are necessary to enable him to show that he is being charged with an offence which is either the same or substantially the same as the one in respect of which he could have been convicted;

(7) that what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings;

(8) that, apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies;

(9) that apart from cases where indictments are preferred and where pleas in bar may therefore be entertained, the fundamental principle applies that a man is not to be prosecuted twice for the same crime.” (my emphasis)

In that case, the House of Lords held that the test was whether proof 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. In that case proof of robbery would not have supported a charge of murder or manslaughter because “there can be a robbery without killing.” The appeal against conviction was dismissed.

It is not in dispute that the offences themselves of misprison of treason, and taking an oath or engagement under the Public Order Act are not the same. However, the Applicant says that because of the evidential background of both cases, that is of alleged treason, they are substantially the same.

Section 28 of the Constitution and section 279 of the Criminal Procedure Code do not use the words “substantially the same”, and State counsel argues that this application is therefore not a basis for a plea of autrefois convict in Fiji. Further, he says that this ground was never part of the doctrine even at common law, as indeed the other members of the court in Connelly conceded, but that it developed as a relevant consideration in respect of the court’s inherent powers to prevent the abuse of its own processes.

This latter position was confirmed by the English Court of Appeal in R v. Beedie (1997) 2 Cr. App. R. 167. In that case, the appellant was prosecuted firstly for failing to maintain his premises so as to ensure his tenant’s health and safety. He was alleged to have failed to keep a gas fire in proper working order. He pleaded guilty to this offence and was fined. An inquest was conducted in respect of the death of the tenant, and he was later prosecuted for manslaughter. He applied to stay the trial on the grounds of autrefois convict. His application was refused, and he was convicted on his plea of guilty. On appeal, it was held that the plea of autrefois convict is only applicable where the same offence is charged in the second indictment. However the judge has a discretion to stay the proceedings where the second offence arises out of the same or substantially the same set of facts as the first. In the circumstances there were no special circumstances justifying the second indictment and the appeal was allowed.

Certainly, the older cases on the subject would appear to confirm a more restrictive approach to the plea. Thus in The King v. Barron (1914) 2 KB 570, a man was tried for the offence of sodomy. His conviction was quashed on appeal. He was indicted for committing an act of gross indecency with a male person (not the victim in the earlier trial). He pleaded autrefois acquit on the basis that the same set of depositions were being used for both trials. His plea was unsuccessful and he was convicted and sentenced. The Court of Criminal Appeal held on appeal that the plea could only have succeeded if he had previously been acquitted of the same offence, or that the two offences were “substantially the same.” Lord Reading said, at p.576:

“It is quite clear that the jury could not have convicted the appellant of gross indecency at the first trial. And it is equally clear that the acquittal on the graver charge did not necessarily involve an acquittal of the minor offence.”

The same reasoning process was followed in Kandrick & Smith (1931) Cr. App. R. 1, in which the elements of the two offences were compared. In the case of Pearce v. The Queen (1998) the High Court of Australia, the appellant was charged with a number of offences, including maliciously inflicting grievous bodily harm with intent, and breaking and entering with inflicting grievous bodily harm, on the same indictment. The appellant applied for a stay of the proceedings on the grounds of double jeopardy or abuse of the process. The application was refused and the appellant pleaded guilty on both counts. He was sentenced and he appealed on the ground that he had suffered double jeopardy.

In tracing the rationale of the rule, the High Court adopted the following passage from Green v. United States 355 US (1957) 184, 187:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence thereby subjecting him to embarrassment, expense and ordeal, and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

The Court however pointed out that the principle needed to be considered together with the known fact that a single series of events can give rise to several criminal offences, and that punishments should reflect the totality of the offending. The Court held that the plea of autrefois should be confined to cases where the elements of the offence are identical, or are all present in the offence charged in one indictment. The rule, said the Court (per McHugh, Hayne & Callinan JJ) is a rule prohibiting “repeated prosecution for a single offence.” However the court still has inherent powers to prevent abuse of its own process, and there may be cases where a prosecution for offences arising out of the same facts may lead to a stay, even if a plea of autrefois did not apply.

Kirby JA said in his judgment that the softening of the original rule that the offences must be the same for the doctrine to apply, may have developed because the court’s inherent jurisdiction to stay for abuse of the process had not fully emerged. However he said (at para 106):

“In England, the United States and India, the most populous jurisdictions of the common law, a strict test is applied. It is one which looks to the elements of the successive charges. If those elements are different, there is no foundation for the plea of autrefois acquit or autrefois convict, or for invoking constitutional protection against double jeopardy. In such circumstances, it matters not that in proof of a separate offence, reference may be made to facts common to each matter charged. It is the definition of the offence and not the common evidence which grounds the legal complaint of double jeopardy.”

In New Zealand, section 358(1) of the Crimes Act provides:

“On the trial of an issue on a plea of previous acquittal or conviction to any court, if it appears that the matter on which the accused was formerly charged is the same in whole or in part as that on which it is proposed to give him in charge and that he might on the former trial, if all proper amendments had been made, have been convicted of all the offences of which he may be convicted on any court to which that plea is pleaded, the Court shall give judgment that he be discharged from that court.”

This provision appears, on the fact of it, to envisage a “substantially the same offence” argument. It is certainly not as restrictive as the Fiji Criminal Procedure Code provision. However counsel for the State referred me to Christchurch City v. Smith (1965) NZLR 992 (a decision of the then Supreme Court of New Zealand) and R v. Brightwell (1995) 2 NZLR 435. In those cases, the New Zealand courts demonstrated an unwillingness to extend the plea. In Christchurch City the question of whether the offences of driving a motor vehicle beyond the speed limit, and driving a motor cycle without a helmet and exceeding the speed limit, both of which arose out of the same act were precluded by the plea of autrefois, was stated to the Supreme Court. Wilson J found that they were not so precluded. He said that he did not accept that one act resulted in the commission of both offences, but even if that were the case, it did not bar a conviction on both “when the essential ingredients of the one are not wholly comprehended in the other.”

In Brightwell the appellant was convicted of presenting a firearm without lawful and sufficient purpose at a man. He pleaded guilty. He was later prosecuted for threatening to do grievous bodily harm to the same victim in respect of the same incident. The New Zealand Court of Appeal decided that the offences were not the same, nor substantially the same and dismissed the appeal. The Court held (at p.473):

“The underlying principle is that a person is not to be prosecuted twice for the same crime. The special plea, however, does not operate where two distinct offences are committed by the one act. The question is not whether the facts or the evidence relevant to both are the same, but whether the offences are the same or substantially the same.”

The Court considered the scope of the plea at common law and discussed category (4) of the different circumstances in which the plea might apply, as set out by Lord Morris in Connelly v. DPP (supra). That category asked whether the accused could have been convicted of the subsequent offence on the first indictment. Henry JA, who delivered the Court’s judgment, said that this proposition should be read in the context of the whole of the judgment, and in particular the finding at pp. 1307-1308, that two prosecutions could emerge from the same set of facts, or the same act, provided there had been, in substance, two offences.

Thus, even where legislation has provided for a wider description of the plea of autrefois, judicial discretion has not shown any inclination to extent the doctrine. Philosophically, judicial reluctance to interfere in what is essentially a prosecutorial function is understandable. It is only when such a function requires the intervention of the court because it becomes an abuse of the processes of the court, than any such interference might become justifiable in exceptional cases, and in the interests of justice.

In a recent decision in the civil jurisdiction of the High Court, Winter J said in the case of Timoci Naco & Anr. v. Colonial Mutual Life Assurance Society Ltd. & Anr. HBC 413 of 2003:

“The rule of law requires the existence of courts for the determination of disputes and that litigants have a right to use the Court for this purpose. Courts must also, however, be alert to their processes being used in a way that results in oppression or injustice that would bring the administration of justice into disrepute. This is because “the Courts Authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction.” (Justice Felix Frankfurter in Baker v. Carr 369 US 186, 267 (1962) (Savil Contractors & Others v. B.N.Z. & Others CA 108/02 and 12/03 unreported NZCA 23/24 Sept. 2003).”

The principle is equally applicable in the criminal jurisdiction of the High Court, in the context of abuses of the processes of the Court.

Section 279 of the Criminal Procedure Code

There can be no doubt that there is no contravention of section 279 of the Criminal Procedure Code. The offences alleged in the two Informations are distinct and separate. A misprison of treason, is, in essence, having knowledge that treason will be committed and failing to inform the authorities about it. The taking of an oath or engagement purporting to bind the accused to treason is unconnected to having prior knowledge about treason. The acts alleged are different. Only the background to both alleged acts is the same, that is, the political crisis of May 2000. The summing up of Gates J in State v. Savu was silent on any oath-taking ceremony. It appears that it was irrelevant to the charge of misprison of treason.

The offences charged are not the same, and the plea of autrefois convict cannot succeed.

Abuse of Process

It is accepted that the High Court has inherent powers to prevent an abuse of its processes. It is also accepted that those powers can be exercised when the doctrine of autrefois does not strictly apply, but where a prosecution, (perhaps because it is based on substantially the same offence as has been previously charged) is oppressive or prejudicial. In Connelly v. DPP (supra) Lord Devlin (at p.1340) said:

“If I had felt that the doctrine of autrefois was the only relief available to an accused who has been prosecuted on substantially the same facts, I should be tempted to stretch the doctrine as far as it would go.”

Stretching the doctrine is not necessary with the extensive development of the inherent jurisdiction to stay for prosecutorial abuse of the process. Kriby JA said at para. 117 of Pearce (supra):

“The power to provide a stay represents a separate and independent safeguard afforded by the law and exercised by the judiciary. It does not require an applicant to prove that a second or double prosecution or punishment would be “well-nigh outrageous.” But it does require that special circumstances be shown. The jurisdiction does not exist to give effect to a general judicial sense of “fairness” substituting this, for the prosecutor’s decisions (made within power) which are ordinarily exempt from judicial superintendence. Clearly however, if oppression of, or prejudice to, an accused person can be demonstrated, the provision of a stay of proceedings upon the governing indictment, or court of the indictment, is warranted.”

In this case, I do not consider that the charge in the Information will lead to oppression or prejudice. I do not consider that the Applicant was facing substantially the same charge at his trial in 2002, and I consider that the charge in the earlier trial, though factually connected to the events of May 2000, could not have led to a conviction in respect of the charge on the Information before me. I am told by counsel that the only evidential link is that the Applicant’s caution interview includes questions in respect of both counts. It appears that the prosecution alleges two offences arising from a continuing course of events. Laying two charges on two separate Information does not lead to an oppressive or prejudicial prosecution per se.

Conclusion

The application to a plea in bar of autrefois convict is dismissed. The implied application for a discharge on the ground of abuse of the process is also dismissed. The Applicant may plead to the Information.

Nazhat Shameem
JUDGE

At Suva
7th June 2004