Athuman and two others v. R. Crim. Apps. 29, 30 and 269-D-70; 10/5/71; Biron J.

 Athuman and two others v. R. Crim. Apps. 29, 30 and 269-D-70; 10/5/71; Biron J.

The appellants were charged with burglary and stealing. In his petition of appeal the first appellant stated that he had been previously tried for the same offence before a primary court. The proceedings of the primary court hearing were called of an they disclosed that he had been charged with the offence but that after he had given evidence in his defence, the charge had been withdrawn under s. 22(1) of the Primary Courts Criminal Procedure Code apparently because he was to be tried by the district court. The issue was whether the defence of autrefois acquit was open to him.

Held: (1) “Section 22 of the Primary Courts Civil Procedure Code reads: “22. – (1) A complainant may with the

            Consent of the court, withdraw his complaint at any time before the accused person gives evidence at the trial, and where the court gives its consent to the withdrawal of the complaint, it shall withdraw the charge and, unless the accused person is remanded in custody on some other charge, discharge him. (2) The discharge of an accused person under this paragraph shall be without prejudice to the institution of new proceedings for the same offence. (3) Nothing in this paragraph shall be construed as derogating from the power of the Director of Public Prosecutions to enter a nolle prosequi in any proceedings.’ As will be noted, the section is silent as to the position when a charge is withdrawn after the accused has given evidence. On the principle of expressio unius personae vel rei, est exclusio alterius, the section could be and should be construed to the effect that if the charge is withdrawn after the accused has given evidence, he is entitled to an acquittal. If there is any doubt as to the construction of this section such doubt is, I consider, dispelled by the wording of section 86 of the ordinary Criminal Procedure code, from which the section 22 is derived, and which reads:- “86. In any trial before a subordinate court any public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal- (a) if it is made before the accused person is called upon to make his defence, he shall be discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same fact; (b) if it is made after the accused person in called upon to make his defence, he shall be acquitted.” ……..the withdrawal of the charges against the first and second accused after they had given evidence, they should have been acquitted. The case against them is therefore res judicata, and the defence of autrefois acquit is open to them.” (2) “The evidence against the other appellants did not justify conviction.” (3) Appeals allowed; Conviction quashed.