UNIT SIX

SUMMARY PROCESS

The following legislation allows for laying a complaint/information before the court in
both types of proceedings, summary or indictable.

T&T Summary Courts Act Chap 4:20, Ss. 33-34; 38-40

33.
(1) Every proceeding in the Court for the obtaining of an order against any person in
respect of a summary offence or for the recovery of a sum by this Act or by any
other written law recoverable summarily as a civil debt shall be instituted by a
complaint made before a Magistrate or Justice.

(2) In every case where no time is specially limited for making a complaint for a
summary offence in the Act relating to such offence, the complaint shall be made
within six months from the time when the matter of the complaint arose, and not
after.

34.
(1) Any person may make a complaint against a person committing a summary
offence, unless it appears from the written law on which the complaint is founded
that a complaint for such offence shall be made only by a particular person or
class of persons.

(2) Notwithstanding anything to the contrary contained in any Act, a constable may
make a complaint in a case of assault or battery, even though the party aggrieved
declines or refuses to make a complaint.

(3) (a) Any police officer may lay an information or make a complaint in the name
of the Commissioner of Police and appear and conduct the proceedings on
his behalf. Every such information or complaint shall be signed by the police
officer laying or making the same; and such police officer shall be deemed
for all purposes of the Act other than those specified in this paragraph and
paragraph (b) to be the complainant; and proceedings under any such
information or complaint shall not lapse or be determined by reason of any
change as to the holder of the office of Commissioner.

(b) No such proceedings shall be dismissed by reason only of the failure of the
Commissioner of Police to appear in person or by Attorney-at-law, provided
he is represented by a police officer present in Court.
38.
(1) Every information, complaint, summons, warrant or other document laid, issued
or made for the purpose of or in connection with any proceedings before a Court
of summary before jurisdiction for an offence, shall be sufficient if it contains a
statement of the specific offence with which the accused person is charged,
together with such particulars as may be necessary for giving reasonable
information as to the nature of the charge.

(2) The statement of the offence shall describe the offence 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, if the offence
charged is one created by Act or other written law, the statement shall contain a
reference to the section of the written law creating the offence.

(3) After the statement of the offence, necessary particulars of the offence shall be set
out in ordinary language in which the use of technical terms shall not be required.

(4) Any information, complaint, summons, warrant or other document to which this
section applies which is in such form as would have been sufficient in law if this
section had not come into force shall notwithstanding anything in this section
continue to be sufficient in law.

39.
(1) It shall not be necessary that any complaint shall be in writing, unless it is
required to be so by the written law on which it is founded, or by some other
written law. However, if a complaint is not made in writing, the Clerk shall
reduce it to writing.

(2) Subject to section 45, every complaint may, unless some written law otherwise
requires, be made without any oath being made of the truth thereof.

(3) Every such complaint may be made by the complainant in person, or by his
Attorney-at-law or by any person authorised in writing in that behalf.

(4) Every such complaint shall be for one offence only, but such complaint shall not
be avoided by describing the offence or any material fact relating thereto in
alternative words according to the language of the written law constituting such
offence.

(5) The description of any offence in the words of the written law creating the
offence, or in similar words, with a specification, so far as may be practicable, of
the time and place when and where the offence was committed, shall be sufficient
in law.
40.
Any exception, exemption, proviso, condition, excuse, or qualification, whether it
does or does not, in any written law creating an offence, accompany in the same
section the description of the offence, may be proved by the defendant, but need
not be specified or negatived in the complaint, and if so specified or negatived, no
proof in relation to the matter so specified or negatived shall be required on the
part of the complainant.

Indictable Offences (Preliminary Enquiry) Act Chap 12:01 Ss. 6-8

COMPLAINT

6.
Where a complaint is made to a Magistrate or Justice of the Peace that an
indictable offence has been committed by any per- son whose appearance he has
power to compel, the Magistrate or Justice of the Peace shall consider the
allegations of the complainant, and if he is of opinion that a case for so doing is
made out, he shall issue a summons or warrant in accordance with this Act and
the Magistrate or Justice of the Peace shall not refuse to issue such summons or
warrant on the ground only that the alleged offence is one for which an offender
may be arrested without warrant.

SUMMONS TO ACCUSED PERSON

7.
(1) A Magistrate may issue a summons although there is no complaint in writing or
upon oath.

(2) The summons shall be directed to the accused person and shall require him to
appear at a certain time and place to be mentioned in the summons.

(3) No such summons shall be signed in blank.

(4) Every such summons shall be served by a constable upon the accused person,
either by delivering it to him personally or if he cannot be found by leaving it with
some person for him at his last or most usual place of abode.

(5) The constable who served the summons shall attend at the time and place
mentioned in the summons for the appearance of the accused person, in order, if
necessary, to prove the service; but the Magistrate before whom the accused
person ought to appear may in his discretion receive proof of the service by
affidavit and such affidavit may be made before any Magistrate.
WARRANT FOR APREHENSION OF ACCUSED PERSON

8.
(1) Where there is a complaint in writing and upon oath, a Magistrate may, if he is of
opinion that a case for so doing is made out, issue a warrant for the apprehension
of the accused person. The warrant may be issued and executed at any time and
may be issued and executed on a Sunday.

(2) The fact that a summons has been issued shall not pre- vent any Magistrate from
issuing the warrant at any time before or after the time mentioned in the summons
for the appearance of the accused person; and where the service of the summons
for the appearance of the accused person is proved and the accused per- son does
not appear, or where it appears that the summons can- not be served, the warrant
may issue.

(3) The Magistrate who would have heard the charge if the person summoned had
appeared may issue the warrant, either on complaint in writing and upon oath
taken before himself, or on complaint in writing and upon oath taken before
another Magistrate, either before or after the summons was issued.

NOTE
1) Defective process whether summary or indictable may be amended once the
defendant is not seriously prejudiced, and once the defect is not too fundamental.

2) Statute gives a magistrate power to amend a complaint laid before him if the
errors are not fundamental.

3) The application to amend should be made as early as possible, preferably before

the defendant enters a plea, although amendments can be allowed at even the
appellate stage.

4) Amendments are commonly made to change dates, place of offence, names of

parties, or to cite the correct statutory provision.

5) Proceedings which are duplicitous may also be amended

DUPLICITY
The complaint/information/count must contain only one offence/charge otherwise it will
be bad for duplicity. This rule is also statutory.

1. A duplicitous charge may be cured by amendment. The prosecution elects which

charge/offence it wishes to proceed with.
2. A duplicitous charge would be one in which an offence is alleged to have been
committed “on diverse days” or where a statute creates 2 or more offences and the
offences are charged as one offence or the other.

3. Where 2 offences are committed by one person they may be validly charged in one
complaint/information where:
a) Both acts involve the commission of the same offence
b) Both acts amount to one activity
c) Both acts are connected in time and place.

4. Where a duplicitous charge is not amended and the defendant is convicted different
consequences may flow depending on jurisdiction. In Trinidad the Court of Appeal may
allow the charge to be amended and uphold the conviction.

STATUTORY PROVISIONS ON AMENDMENTS OF SUMMARY PROCESS

T&T Summary Courts Act Chap 4:20 S. 118(3)

3)
Where any variance or defect mentioned in this section appears to the Court at the
hearing to be such that the defendant has been thereby deceived or misled, the
Court may make any necessary amendments, and, if it is expedient to do so,
adjourn, upon such terms as it may think fit, the further hearing of the case.

Indictable Offences (Preliminary Enquiry) Act Chap 12:01 S.11

IRREGULARITIES
11.
(1) No irregularity or defect in the substance or form of the complaint, summons, or
warrant, and no variance between the charge contained in the summons or warrant
and the charge contained in the complaint, or between any of them and the
evidence adduced on the part of the prosecution at the preliminary enquiry, shall
affect the validity of any proceeding at or subsequent to the hearing.

(2) Where any accused person is before a Magistrate, whether voluntarily or upon
summons, or after being apprehended with or without warrant, or while in custody
for the same or any other offence, the preliminary enquiry may be held
notwithstanding-
(a) any irregularity, illegality, defect or error in the summons or warrant, or
the issuing, service or execution of the same;
(b) the want of any complaint upon oath; or
 (c) any defect in the complaint, or any irregularity or illegality in the arrest or
custody of the accused person.

(3) The Magistrate may, if he thinks that the ends of justice require it, adjourn the
hearing of the case, at the request of the accused person, to some future day and in
the meantime remand the accused person or admit him to bail.

(4) Where the hearing is adjourned under subsection (3), the accused person shall not
be committed to prison unless, before his committal, a complaint in writing and
upon oath is taken.

LEGISLATION ON AMENDING INDICTMENTS

Indictable Offences (Preliminary Enquiry) Act Chap 12:02 S. 14

JOINDER OF CHARGES

NOTE
(1) Statute may allow the court to hear several charges arising out of a single incident
in a single trial. In certain territories such as Trinidad, Grenada and St Lucia
consent of the defendant is required. In Barbados, Guyana and Dominica consent
is not required.

(2) Contrast joinder with cross charges which are available in most jurisdictions. This
is where the defendant brings charges against the complainant for matters which
arise out of the same case in which the defendant was charged. In Grenada,
consent of the defendant is required.

(3) Improperly joined charges will not invalidate a conviction. Upon appeal the Court
of Appeal will decide which of the charges will stand (The essential charge will
stand).

(4) Joinder of charges is always done in the High Court without the defendant’s
consent.

LEGISLATION ON SUMMARY JOINDER

T&T Summary Courts Act Chap 4:20 S. 64

64.
(1) Where a complaint is made by one or more parties against another party or other
parties, and there is a cross- complaint by the defendant or defendants in such
first-named case either by himself or themselves or together with another person
or other persons against the complainant or complainants in the first- named case
either by himself or themselves or together with another person or other persons,
and such cross-complaints are with reference to the same matter, the Court may, if
it thinks fit, hear and determine such complaints at one and the same time.

(2) Where two or more complaints are made by one or more parties against another
party or other parties and such complaints refer to the same matter, such
complaints may, if the Court thinks fit, be heard and determined at one and the
same time if each defendant is informed of his right to have such complaints taken
separately and consents to their being taken together.

STATUTORY PROVISIONS ON JOINDER IN INDICTABLE TRIAL/HIGH

COURT PROCEEDINGS

Chap 12:02 S. 13(3)

Amendment Rules (3)

JOINDER OF PARTIES

Parties may be joined without consent where it is alleged that they acted together in a
joint enterprise.

NOTE FURTHER

Trinidad and Tobago CPR 2016 Rule 5

5. Starting a prosecution in the Summary Court

5.1 This Part applies to a Summary Court where–

(a) proceedings have been instituted against an accused in accordance with Part III of
the Summary Courts Act or the Indictable Offences (Preliminary Enquiry) Act; or
(b) a person who is in custody appears before a Magistrate charged with an offence.

Complaint/Information

5.2 (1) A complainant who wants the court to issue a summons must:-
(a) file a complaint, lay or prefer an information in writing in the court office; or
 (b) unless any other written law otherwise provides, present an information orally to
the court, with a written record of the allegation that it contains.

(2) A complainant who wants the court to issue a warrant must–

(a) file a complaint, lay or prefer on the court office–
(i) an information in writing; or
(ii) a copy of a complaint that has been issued; or
(b) present to the court either the complaint or the information.

(3) A single document may contain–

(a) more than one information; or
(b) more than one complaint.

(4) Where an offence can be tried only in the Summary Court, then unless any other
written law otherwise provides–
(a) a complainant must lay or prefer an information before the court officer or
present it to the court; or
(b) a complainant must file a complaint or information in the court office,
not more than 6 months after the offence alleged.

(5) Where an offence can be tried in the High Court then–

(a) a complainant must lay or prefer an information before the court office or present
it to the court; or
(b) a complainant must file a complaint within any time limit that applies to that
offence.

Allegation of offence in complaint/information

5.3(1) An allegation of an offence in an information or a complaint or charge must

contain–
(a) a statement of the offence that–
(i) describes the offence in ordinary language; and
(ii) identifies any written law that creates it; and
(b) such particulars of the conduct constituting the commission of the offence so as to
make clear what the complainant alleges against the accused.

(2) More than one incident of the commission of the offence may be included in the
allegation if those incidents, taken together, amount to a course of conduct having regard
to the time, place or purpose of commission.

Summons/warrant
5.4 (1) The court may issue or withdraw a summons–
(a) without giving the parties an opportunity to make representations; and
(b) without a hearing, or at a hearing in public or in private.
(2) The court may issue or withdraw a warrant–
(a) without giving the parties an opportunity to make representations; and
(b) without a hearing, or at a hearing in public or in private.

(3) Where appropriate, the court may inform such parties and participants that it has done
so as the court may deem necessary.

(4) A summons or warrant may be issued in respect of more than one offence.

(5) A summons must–

(a) contain notice of when and where the accused is required to attend the court;
(b) specify each offence in respect of which it is issued; and
(c) identify–
(i) the court that issued it, unless that is otherwise recorded by the court officer;
and
(ii) the court office for the court that issued it.

(6) A summons may be contained in the same document as information or must be

accompanied by the complaint or information.

(7) Where the court issues a summons–

(a) the complainant must–
(i) serve it on the accused; and
(ii) notify the authorised officer; or

(b) the authorised officer must–

(i) serve it on the accused; and
(ii) notify the complainant.

(8) Unless it would be inconsistent with other legislation, a replacement summons may be
issued without a fresh information or complaint where the one replaced–
(a) was served by leaving or posting it under rule 18.4 (documents that must be
served only by handing them over, leaving or posting them); but
(b) is shown not to have been received by the addressee.

(9) A summons issued to an accused under 18 years of age may require that accused’s
parent or guardian to attend the court with the accused, or a separate summons may be
issued for that purpose.

(10) A summons may be issued to secure the attendance of the complainant,

notwithstanding that the court has received either a reasonable excuse for non-attendance
of the complainant or other sufficient reason and has adjourned the hearing.
SEETAHAL NOTES

There are two types of offence:

1. Summary - tried in the magistrates’ court
2. Indictable - tried by a jury before a judge

Possible “third category” - offences that are triable either way.

All criminal proceedings are currently initiated in the magistrates’ court, whether they are
serious or minor. Even indictable offences must first have a preliminary enquiry in the
magistrates’ court for the magistrate to determine if the case should go for trial to the
High Court before a jury.

As a general rule, all offences for which the maximum punishment is six months’
imprisonment or less will be summary. A good rule of thumb is that all ‘serious’ offences
are indictable.

COMMENCEMENT OF PROSECUTION

The prosecution of an offence can be commenced in one of three ways:

• by an arrest without warrant followed by a charge and the laying of a complaint or
information containing the charge;
• by the laying of a complaint or information on oath followed by the issue, based
on the complaint/information, of a warrant of arrest for the named defendant;
• by the laying of a complaint, on oath or not, and the issue of a summons, based on
the complaint, for the appearance of the defendant.

In some jurisdictions the complaint which begins indictable proceedings in the

magistrates’ court is referred to as an ‘information’ - it describes the document
containing the charge in the magistrates court.

Ø Summary Level

Commencement of Criminal Proceedings

the prosecution presents to the magistrate a complaint/ information alleging that
the person named has committed some specific offence.
§ if the complaint is not initially in writing, it should be reduced to writing
§ specify the statement of the offence (the name of the offence)
 § sufficient particulars which usually include:
o date of the alleged offence
o place of the alleged offence
o the act complained of in succinct terms.
§ If the offence is one created by statute, a reference to the section creating
the offence is expected to be included.

Ø Indictable Trial

Commencement of Criminal Proceedings

The ‘indictment’ is the document which is filed in court. If the Director of Public
Prosecutions wishes to proceed with the indictable charge, he must cause an
indictment to be filed in the High Court.

NB.
• Apart from the court in which they are filed, the difference between a complaint
and an indictment is that in respect of the latter, the statement of offence and the
particulars are separately laid out.
• Also, while one complaint is expected to contain one charge, an indictment in
contrast may contain one or more counts.
• In general, a charge, whether contained in a complaint or in a count in an
indictment, must contain only one offence.

DUPLICITY

• If a charge contains more than one offence, it is defective and considered ‘bad for
duplicity’.

• The purpose of the rule against duplicity is to enable the defendant to know the
case he has to answer so that he will not be prejudiced or embarrassed in the
preparation of his defence.

• The defendant must know which offence to defend and which not, so that his
ability to plead should not be adversely affected.

• See Seminar Notes for T&T Summary Courts Act Chap 4:20, S 39(4)

‘One activity’
 § If circumstances relate to more than one act, they may give rise to more than one
offence.
§ If, however, these acts are part of one activity, they can be said to constitute one
offence.

Jemmison v Priddle [1972] 1 QB 489,

Facts:
• The defendant was charged with the unlawful taking and killing of two red deer
without a licence.

Rationale:
• The court considered that the defendant had been charged with the one activity of
shooting red deer without a licence.
• The Lord Chief Justice said:
... although as a nice debating point it might well be contended that each
shot was a separate act, indeed each killing was a separate offence, I find
that all these matters, occurring as they must have done within a very few
seconds of time and all in the same geographical location, are fairly to be
described as components of a single activity and that made it proper for the
prosecution in this instance to join them in a single charge. (Test)

Held:
• It was legitimate to charge as a single information one activity even if that
activity involves more than one act.

DPP v Merriman [1973] AC 584 (HL)

Approved the above principle in Jemmison.

§ Lord Diplock said (Merriman, p 607):

When two or more acts of a similar nature committed by one or more
defendants are connected with one another in the time and place of their
commission, or by their common purpose in such a way that they can fairly
be regarded as forming part of the same transaction or criminal enterprise,
they can be charged as one offence in a single count in an indictment.

R v Johnson and Brown (1974) 22 WIR 470 (Jamaican case)

Facts:
• The defendants each shot at two constables in the course of a police chase.
• They were charged together on single counts for the shooting of each constable.
•
Held:
• Neither count was bad for duplicity since they related to one activity.
Ramjohn v Johnson (1966) 10 WIR 159 (Trinidad and Tobago case)
Facts:
• The defendant was charged for having both a stick and a cutlass in his possession
intended for wounding Johnson.
• He was charged and convicted under s 66 of the Trinidad and Tobago Summary
Offences Ordinance, which prohibited a person from ‘having in his custody or
possession any weapon, instrument, stick, bottle, stone or other thing intended for
the purpose of committing’ a crime.

Rationale:
• Although either one or the other of the two acts was adequate to constitute the
offence charged, the defendant could be convicted of the offence as established by
either act if they were from a single incident and were charged together.

Held:
• It was held that it was permissible to charge the defendant for both acts together.

NOTE:
Where, however the two acts were not contemporaneous, they should not be
charged together even though the statute created only one offence.

Continuous Offence

• It is technically correct to charge a continuing offence in one complaint or count.

• In practice, however, it might be fairer to the defendant in such a case, especially
on a jury trial, to charge in separate counts for such different acts.

Cullen v Jardine [1985] Crim LR 668

It was held that charging the unlawful felling of a number of trees in one information did
not offend against the rule against duplicity although the felling occurred over a number
of different days.

DPP v McCabe [1992] Crim LR 885

Facts:
• 76 library books which were stolen over a period of time were found in the
defendant’s home.

Rationale:
 • The substance of the offence was the same and the victim was one legal person.
There could not be said to be any real prejudice to the defence.

Held:
• It was appropriate to charge this as one offence of theft, although the books were
taken from 32 branches of the same library.

Conjunctivity

Sookdeo v R (1963) 6 WIR 450 (Trinidad and Tobago case)

Facts:
• the defendants were charged in one count in that they ‘being armed with offensive
weapons, to wit, two revolvers, together attempted to rob W’.
• The offence was contrary to s 24(a) of the Larceny Ordinance which stated:
‘Every person who: (a) being armed with an offensive weapon or instrument, or
being together with one person or more attempts to rob any person ... shall be
guilty of a felony.’

Held:
• Even if the statute did create two separate offences, the indictment was not bad
for duplicity since the offences were not charged in the alternative. They were
charged together and both offences arose out of one act.

Simon v Reid et al (1965) 8 WIR 166 (Trinidad and Tobago Court of Appeal)

Held than an information for assembling and gambling was not duplicitous because the
two offences were charged conjunctively.

Alternative offences or modes

Alternative
If two or more offences are created by one section of a statute and they are not charged
conjunctively but in the alternative, this will constitute a duplicitous charge.

Ware v Fox [1967] 1 All ER 100

Facts:
• The defendant was charged with ‘being concerned with the management of
certain premises which were used for the purpose of smoking cannabis or
cannabis resin or for the purpose of dealing in cannabis resin’.
 • The section created two offences:
1. being concerned with the management of premises used for smoking
cannabis; and
2. being concerned with the management of premises used for ‘dealing in
cannabis’.
Held:
• The charge was duplicitous as laid in the alternative and the conviction would be
quashed.

Fox v Dingley et al [1967] 1 All ER

Facts:
• The respondents were charged for being concerned in the management of
premises used for smoking and dealing with cannabis.
• The section created two offences:
3. being concerned with the management of premises used for smoking
cannabis; and
4. being concerned with the management of premises used for ‘dealing in
cannabis’.

Held:
• Since the two offences were charged conjunctively, the information was not
duplicitous. As such the appeal was dismissed.

Note:
Difference with the two cases were how the charge was written; OR and AND.

Modes
• The issue will arise as to whether a statutory provision creates two (or more)
separate offences or whether it creates different modes of committing one offence.
• If a complaint or count charges two or more offences in the alternative, as in Ware
v Fox (above), it will be duplicitous.
• If it charges different modes of committing one offence, this does not offend
against the rule against duplicity once the wording of the charging section is
adhered to.

Taylor v Khan (1969) 15 WIR 254 the Trinidad and Tobago Court of Appeal
Facts:
• the defendant was charged on a summary complaint which alleged that he
‘wilfully secreted or kept a postal package containing jewellery in the course of
transmission by post ...’.
 • This was said to be contrary to s 45(a) of the Post Office Ordinance which read as
follows:
Any person who fraudulently retains; or wilfully secretes or keeps or
detains or when required by an officer of the Post Office, neglects or
refuses to deliver up:
(a) any postal package which is in the course of transmission by post ...
shall be guilty ...
• First instance was held to be duplicitous. It was appealed.

Held:
The charge related to one offence created by the section and reflected the wording of the
statute. It was not duplicitous.

Determining Alternative or Mode

R v Wilmot (1933) 24 Cr App R 63

Facts:
• the defendant was charged (under the 1930 Act) with driving ‘a motor car
recklessly or at a speed or in a manner which was dangerous to the public ...’.
• No objection to the charge was taken until after conviction, it was held that it was
bad for duplicity and the resultant conviction must be quashed.

Rationale:
• The test, which the court appeared to use, was:-
if ‘a person may do one [act] without the other’ it follows that the section
creates different offences in relation to the different acts. A charge in the
alternative, even citing the statutory provision, is thus bad because more than
one offence is charged.

Held:
• The court held that the section obviously created more than one offence.

Contrast though…

DPP v Bennett (1992) 157 JP 493

Facts:
• The defendant was charged under s 170(2) of the 1988 Road Traffic Act with,
inter alia, failing to stop and to give his name and address.
• Section 170(2) read:
The driver of the motor vehicle must stop and, if required to do so by any
person having reasonable grounds for so requiring, give his name and
address and also the name and address of the owner ...
Held:
• On appeal - this section created only one offence regardless of whether there was
a stopping, but a failure to give name and address, or a failure to stop at all.

Hence

The best approach might be a consideration of the nature of the offence, which seemed
to have been the determinant in Bennett (above) and even in Taylor v Khan (above).

The Objection

• An objection to a complaint or a count in an indictment on the basis of duplicity

ought to be taken as soon as possible. It should be done before the defendant
pleads.

• However, it was acknowledged that the failure to take the objection earlier would
not necessarily be fatal to an appellant’s case where he relies on duplicity as the
ground for his appeal against conviction: Sharma v Leacock (1970) 17 WIR
353, p 354.

The Procedure

• a duplicitous charge in itself is not enough to lead to the dismissal of a complaint

Edwards v Jones [1947] 1 KB 659 - If it is found to contain two, the prosecution must
elect on which charge to proceed. The complaint/ information must then be amended to
strike out the second charge and the defendant should afterwards be called upon to plead
on the one remaining charge.

• Legislation providing for no objection to be made to a defect in a

complaint/information in sub- stance or in form does not mean that a court can
proceed on a duplicitous charge.
• Amendment could be made once the defendant has not pleaded.

Effect on Conviction

• If there is no amendment of a duplicitous charge, then the charge is bad and

should be dismissed: Edwards (above).
 • If there is duplicity then the court has no discretion to waive such a defect.

• Applicable to Trinidad and Tobago

Achim v Stephens - followed Edwards v Jones .

Facts:
• In that case the defendant was charged contrary to the Shop Hours Order 1928 for
opening outside shop hours and allowing a transaction to be effected (a sale).

Held:
• The relevant statutory provision created separate offences involving separate
activities of opening outside fixed hours and selling outside those hours.
• Therefore, the charge was duplicitous and since the amendment was only made
after the defence case was complete, and no fresh plea was called for, the ensuing
conviction was void.
• There was no proper plea to the ‘new’ charge and the defendant had had no
opportunity to make a defence to it.

• The Trinidad and Tobago Court of Appeal has also been more liberal in its
application of the principle of duplicity.

Sharma v Leacock (1970) 17 WIR 353

• the court seems to equate duplicity with any other defect which may be amended
on application to the trial court or even on appeal.

Rationale:
• Phillips JA said, p 354:
The principle underlying the question of duplicity in charges is that if
it can be shown that the party might have been prejudiced or
embarrassed in his defence then, of course, he is entitled to have the
conviction quashed.

Held:
• since the defence was fabrication, the defendant was held not to be
prejudiced by a duplicitous charge. The conviction stood.

Rule is:
• Conviction quashed where:
the defendant had been embarrassed or prejudiced in the preparation of his
defence.
 • Conviction stands where:
there was no prejudice, the conviction should stand.

Amendment

A complaint or count may be defective for a variety of reasons which include:

• duplicity (as considered above);
• inaccuracies in date or place which do not conform with the evidence;
• the defendant, victim or other named party in the charge is incorrectly named;
• the incorrect value of an item is stated;
• the wrong statute is cited or incorrectly named or the wrong section is stipulated.

The Procedure

• The prosecution may make an application to the magistrate or the judge, as the
case may be, to amend the charge.
• If the amendment is allowed, and the charge accordingly amended, the defence is
entitled to an adjournment.
• In any event, before the amendment is granted, the court should give the defence
the opportunity to be heard:

Julian v R (1969) 14 WIR 181

Facts:
• The count originally charged the defendant with ‘unlawfully breaking and
entering a dwelling house’, but did not specify the purpose, one of the
constituents of the offence.
• Court considered an amendment (of a count) granted to the prosecution during the
judge’s summing up.
Held:
• While the judge was given wide powers to amend a count in an indictment it was
expected that the power would be exercised to cause no injustice to a defendant.

The Test:
Julian v R (1969) 14 WIR 181
• it is of paramount importance that the court first considers any ensuing prejudice
that may accrue to the defendant if the amendment is granted.
• If the accused person will be seriously prejudiced by the granting of an
amendment to the complaint, count or indictment and this prejudice will not be
cured by an adjournment, the amendment should not be granted.

R v Fong (1970) 16 WIR 156

Facts:
• Before arraignment the prosecution sought and was granted leave to amend a
four-count indictment, one count alleging larceny, to include a fifth count alleging
the alternative offence of receiving.
Held:
• On appeal, the court held that the original indictment was defective in that it
failed to include the alternative (to larceny) charge of receiving as disclosed by
the depositions. Since the amendment was granted before arraignment, no
injustice had been done to the appellant.

Amendment possible on appeal.

DPP v Stewart (1982) 35 WIR 296, PC.
• Section 302 of the Judicature (Resident Magistrates) Act granted wide powers to
the Court of Appeal to ‘amend all defects and errors in any proceedings in a case
tried by a magistrate on indictment’.
• The Court of Appeal allowed an amendment to a count which cited the incorrect
Part of the Schedule of the Act which was contravened.

The Time for the Amendment

• There is no statutory deadline which determines when an amendment should be
granted, although this should preferably be before the prosecution closes its case
so that the defence will have full opportunity to answer.

• In general, then, an amendment at the discretion of the court may be made at any
stage as long as the defendant suffers no real prejudice.

Teong Sun Chuah [1991] Crim LR 463

• The prosecution was allowed to amend a count in an indictment to read ‘obtaining
property’ by deception and not ‘obtaining services’.
• The Court of Appeal held that even though the amendment was made at a late
stage, the substance of the case remained the same throughout and there was no
prejudice to the defendant.

vs

R v O’Connor [1997] Crim LR 516

• The allegation was that he had caused the six deaths by allowing a vessel to go to
sea in an unseaworthy condition with no adequate life saving equipment.
• There was an amendment for a new count alleged failing to take reasonable care
of the safety of the victim on the 27th day of a manslaughter trial.
• The appellant was eventually convicted on the seventh count alone.
Held:
• The amendment was unfair because its effect was to change the factual basis of
the prosecution’s case and to confront the defendant with a different and more
difficult case.
• The defendant was thus deprived of an opportunity to mount a full and effective
defence. The late amendment was unfair.

Types of Amendment
• New counts in indictments (R v Fong (1970) 16 WIR 156)
• In respect of summary proceedings such a situation would not arise, because a
complaint stands alone and must contain only one offence.

Altering a Charge
• The test as to whether a new count should be included in an indictment is no
longer whether it is sought before or after arraignment. The consensus of the
authorities discussed in Fong (above) and Teong Sun Chuah (above) suggests that
the determinant is really whether prejudice will accrue to the defendant or not.

• Where the particulars of the offence (unlike Teong Sum Chuah (above)) are
different from that alleged and the section is also incorrectly stated, then any
amendment to correct this could be said to create a new offence. The defendant
will be prejudiced to an unacceptable level by the amended charge.

Technical defects
• There can be no objection to the amendment of the date and place in a charge
unless it will cause the defendant severe embarrassment.

• A complaint, count or an indictment may be amended in accordance with the

relevant statutory provisions permitting amendment and the general principles of
law.

• The accused person must not be prejudiced or embarrassed in his defence as a

consequence of the amendment so that the later the amendment is sought, the less
likely it is to be granted.

• If the defect is merely technical, however, and the nature of the charge is clear, an
amendment may be granted even on appeal as in DPP v Stewart (1982) 35 WIR
296, PC.
JOINDER OF CHARGES

Joinder relates to the practice of:

- hearing two or more charges at the same time (joinder of charges)
- holding the trials of two or more defendants together (joinder of parties)

It does not refer to the laying of one charge which contains two or more offences.

R v Assim [1966] 2 All ER 881

A court may, subject to legislative provisions to the contrary, hear ‘matters which
constitute the individual offence of the several offenders’ together when the evidence is
‘so related whether in time or by other facts that the interests of justice are best served by
them being tried together’

Joinder of Summary Charges

• Legislation specifically dictates the joinder of charges at summary level.

• No statutory indication then the court may adopt ‘that practice and procedure best
suited to contemporary needs’.18 In several countries of the Commonwealth

Consent

In Trinidad and Tobago, s 64(2) of the Summary Courts Act, Chap 4:20, provides:

Where two or more complaints are made by one or more parties against
another party or other parties and such complaints refer to the same
matter such complaints may, if the court thinks fit, be heard and
determined at one and the same time if each defendant is informed of
his right to have such complaints taken separately and consents to their
being taken together [emphasis added].

• Joint trials of defendants and joint hearings of offences are not automatic.

• If two or more defendants are jointly charged with one offence in one complaint,
a joint hearing follows.
 • If the court does not obtain consent of the defendant or defendants (as the case
may be) to the joinder, any ensuing conviction or convictions will be quashed.
The hearing will be considered a nullity: Quash v Morris (1960) 3 WIR 45.

‘Same Transaction’ (not applicable to T&T)

Where the summary courts procedure legislation does not require that consent of the
defendant must be obtained, then such consent is not necessary

Cross Charges
• Sometimes a defendant in a summary case may file a cross charge against the
complainant, whether a police officer or a civilian.
• This does not occur in indictable proceedings since the complainant would be
the State or the Crown, against whom there could not be a complaint. Statutes
in most jurisdictions enable such cross complaints, or cross charges as they
are sometimes called, to be heard together for reasons of convenience.
• In the absence of enabling statutory provision, it is not possible to hear cross
charges together: R v Epsom JJ ex p Gibbons [1983] 3 All ER 523.

At Committal Proceedings

• There is little legislation determining joint hearings of cases at the committal

stage.

R v Assim [1966] 2 All ER 881

“The question of joinder is a matter of practice in which the court has,
unless restrained by statute, inherent powers to formulate its own rules and
vary them in the light of current experience and the needs of justice.”

• It has, however, been the practice in the Commonwealth Caribbean not to hold
concurrent committal proceedings in respect of separate offences.

• it is permissible to join in one committal proceedings two or more proceedings

if those defendants could be joined in one indictment. Furthermore, where two
offences could be tried together (on indictment), they could be the subjects of
current committal proceedings as well. R v Assim

• In the light of the English Practice Direction and Application No 2 of 2008 it

seems that a joinder is permissible of several informations where the offences
are continuous or closely related.
Joinder of Charges on Indictment

• The Practice Direction specifically states that two indictments can never be
tried together.

Indictment Rules Trinidad and Tobago, Criminal Procedure Act, Chap 12:02
‘charges for any offence to be joined on the same indictment if those charges are
founded on the same facts, or form or are part of a series of offences of the same or a
similar character’

• The offences are joined in one indictment as different counts and are heard
together (subject to any application made to the court for separation) at one
hearing.

The Tests
• Charges may be joined if founded on the same facts or part of a series.

• Offences are said to be ‘founded on the same facts’ if they have a common
factual origin: R v Barrell and Wilson (1979) 69 Cr App R 250.
• In general, if the offences arise from the same incident or are based essentially
on the same evidence, they may be said to be founded on the same facts.
• It is clear that the offences need not be similar. Thus offences of robbery
and rape may be charged as separate counts in one indictment if they arise
from one incident.
• Once there is some nexus, some features of similarity which in all the
circumstances of the case enables the offences to be described as a series, they
may be tried together: Ludlow v Metropolitan Police Com- missioners
(1970) 54 Cr App R 233, HL.

Bhola Nandlal v The State (1995) 49 WIR 412, the Trinidad and Tobago Court
of Appeal
Facts:
• The DPP indicted, and the magistrate and the appellant were convicted, for
corruption in relation to the car gift.
• The DPP later served an indictment against the appellant, the magistrate and SR
for counts of conspiracy to pervert the course of justice and counts of conspiracy
in relation to the money bribe.
• The magistrate was granted a separate trial while the appellant and SR were tried
and convicted on this second indictment.
Held:
• The separation of the offences into two indictments was a contravention of r 3
of the Indictment Rules and had deprived the appellant of the opportunity of
having all the charges against him considered together (in one indictment and
at one trial) and in a manner that would not be oppressive.
• The court even pointed out that as a result, the defendant had to pay two sets
of legal fees when he should have paid one.

Capital Offenses

• One significant exception to the principle - capital offences should not be

joined. The death penalty still exists in these countries and murder is one
offence for which it is mandatory.

• A jury of 12 cannot sit on a non-capital offence where statute provides a

different number of jurors for non-capital offences: Seeraj Ajodha v The
State (1981) 32 WIR 360, p 373, PC. If a jury comprises a greater number of
jurors in trying a capital offence than a non-capital offence, any ensuing
conviction for such later offence by a jury selected to try the capital offence
will, in the absence of permitting statutory provisions, be invalid.

• Two murders arising from one incident may, however, be charged as separate
counts in one indictment.

Misjoinder – The Consequences

• If offences are wrongly joined together and are heard together in one hearing, the
question arises as to whether the entire proceedings will constitute a nullity.
• In respect of joinder of capital and non-capital offences which are misjoined
because they should not be tried together, the Privy Council has said that
conviction on only the misjoined non- capital offence will be void. Seeraj
Ajodha
• In contrast, where charges are wrongly joined simply because they do not
conform to the statutory requisites for joinder, the entire proceedings will not be a
nullity.
• Which conviction will stand is for the court to determine and this should depend
on the evidence as to which is the essential charge.

JOINDER OF PARTIES
 • This relates to the practice of joining two or more persons in one charge –
charging them together in one complaint or count.
• Joint trials were also permissible when the incidents were contempo- raneous or
linked in a similar manner
• In practice, accused persons are charged in one count if they acted together.
• The summary procedure legislation Trinidad and Tobago demand that different
defendants must consent to more than one charge being taken together.
• However, if it is being alleged that the defendants acted in concert in relation to
one offence (one complaint), consent is not necessary and it seems that the
defendants may be charged jointly in one complaint.

Separate Trials

• The court thus recognised the general principle that even if accused persons are
properly charged jointly, separate trials may be ordered if a joint trial would
embarrass or prejudice the fair trial of one defendant.
• This principle is contained in the legislation on indictment rules in most
jurisdictions which enable an indictment to be amended to ‘direct that the person
should be tried separately for any or more offences charged in the indictment’.
Criminal Procedure Act, Chap 12:02, s 14(3), Trinidad and Tobago.

Severance
• It is equally permissible to sever properly joined counts in an indictment.
Severance refers to an order of the court permitting separate trials of properly
joined counts (charges).
• This will, however, only be done if it is considered that the indictment is so
overloaded that an unduly long and complicated trial will result: R v Novac
(1977) 65 Cr App R 107.
• The determinant then is whether one trial would suffice. Unless the joint trial of
several, properly joined, counts can be shown to be prejudicial or embarrassing to
the accused person, a judge should not order severance of such counts by
directing separate trials of them.
• The overall consideration is the interest of justice. The question of severance of
charges does not arise in summary proceedings, since complaints are never
joined.