[1969-1982] NLR (A) 170

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 3 of 1980

IN THE MATTER of an application for certiorari to remove District Court Criminal Case No. 721 of 1979 into the Supreme Court and to quash the conviction and set aside the sentence therein.

5th March, 1980.

Criminal procedure - joinder in one charge of persons accused of different offences in the course of the same transaction - two accused originally charged in separate proceedings - subsequent joinder - whether lawful.

Application to remove a District Court criminal case into the Supreme Court and to quash the conviction and set aside the sentence on the ground that there was a mistrial because two accused persons charged separately were tried jointly. The offences with which they were respectively charged were alleged to have been committed in the course of the same transaction. They could have been charged jointly in the one charge but were in fact charged separately. Subsequently the magistrate, with the consent of counsel for both accused, stated that the two proceedings would be joined. He recorded "This charge will now be marked the 2nd count and the (other) offence .... will become the 1st count".

Held: The two accused could have been charged jointly from the start, by virtue of section 92(1) (d) of the Criminal Procedure Act 1972. Although the process had been telescoped and only a brief note of it made by the magistrate, it was apparent that the two separate charges were withdrawn and replaced by one joint charge. Counsel for the applicant had consented to the course adopted and the applicant had not been prejudiced by the joinder.

Application dismissed.

Mrs. M.L. Billeam for the applicant
P.A. Thorpe for the respondent

Thompson, CJ.:

This is an application for an order of certiorari to remove into this Court District Court Criminal Case No. 721 of 1979, to quash the conviction therein and to set aside the sentence of nine months' imprisonment. It is the applicant's submission that the proceedings were a nullity because two separate charges against two separate accused persons were tried together.

The record of the proceedings in Criminal Case No. 722 of 1979 reveals that there were indeed originally two separate charges, one against the applicant and the other against his brother. A separate case file was opened for each. Before the trial of either case began, Mrs. Billeam, who represented the applicant in the District Court and has represented him in this Court, informed the District Court that she had "no objection to this charge" (i.e. the charge against the applicant's brother) "being joined with that in Criminal Case No. 721/79" (i.e. the charge against the applicant). She was representing both the applicant and his brother. It is to be observed that she did not speak in terms of the two cases being tried jointly but in terms of the charges being joined. The magistrate then recorded: "These proceedings will be joined with those in Criminal Case No. 721/79; this charge will now be marked the 2nd count, and the offence of Occasioning Actual Bodily Harm against Craig Deidenang will become the 1st count." The use of the expression "count" indicates clearly that he was framing a new charge with the charge in Criminal Case No. 721 of 1979 as the first count and the charge in Criminal Case No. 722 as the second.

Section 92(1) (d) of the Criminal Procedure Act 1972 authorises the joinder in one charge, and the joint trial, of "persons accused of different offences in the course of the same transaction". It is not disputed that the charges in Criminal Cases Nos. 721 and 722 were of offences alleged to have been committed in the course of the same transaction; and Mrs. Billeam has conceded that the prosecutor could lawfully have commenced proceedings originally by a charge containing two counts charging the offences charged in those two criminal cases. But she has submitted that, since the offences were charged in separate charges, they could not thereafter be joined together to form one charge.

Insofar as that submission is based on the premise of the two charges remaining separate, it is clearly correct. But that was not what happened in Criminal Case No. 722. Each of the two offences were charged in a separate count of one charge. What in fact took place was that the two separate charges were withdrawn and replaced by one charge. The process was telescoped, as so often in magistrates' courts, into a brief note of the end result of what was done. What was done was perfectly lawful, although it would have been helpful if the precise steps on the way to the result had been more fully set out. As Mrs. Billeam has conceded, she consented to what was done and so, tacitly, did the prosecutor. The applicant was not prejudiced either by the joinder of himself and his brother in one charge or by the fact that the steps taken by the learned magistrate in replacing the two charges by one were not more fully set out.

Accordingly the trial of the applicant on the new charge was not a nullity. The application for an order of certiorari is dismissed.