Indictments. Joinder of accused in an indictment Flashcards
Joinder of Accused
Two or more accused may be joined in one indictment either as a result of being named together in one or more counts on the indictment, or as a result of being named individually in separate counts, albeit that there is no single count against them all.
The procedure for applications for joint trials is set out in CrimPR 3.29 and 3.30
Joint Counts
All parties to a joint offence may be indicted for it in a single count. In drafting the count:
(a) There is no need to distinguish between principal offenders and secondary parties
(b) The count need not expressly allege that the unlawful acts of each accused were done in aid of the others, as that allegation is implicit in the drafting of a single count.
Where the prosecution seek to join an accused to an indictment following an order that the accused in question be retried, then, in addition to the considerations of general application to an application for joinder, there is added the need to consider if the accused would be substantially adversely affected, so that joinder would represent an abuse of process.
That said, there is no prohibition on the addition of counts to an indictment in such circumstances, where it is fair to do so.
E.g the issue was whether D should have been severed from his co-accused on a joint charge where one of the co-accused had implicated the appellant in interview.
The Court of Appeal observed that the interests of justice were normally best served by allegations with a common thread being ventilated together, and this included issues between defendants, always assuming that injustice could be avoided by robust direction to the jury as to the uses to which parts of the evidence could, and could not, be put.
Possible Verdicts on Joint Counts
Notwithstanding that the accused have been charged in a single count, the jury may convict all or any of them on the basis that they committed the offence charged independently of the others.
… whenever two or more defendants are charged in the same count of an indictment with any offence which men can help one another to commit it is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another to do such an act, and, that in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent.
In short, if two accused, D1 and D2, are charged in a joint count the jury may (a) acquit both, or (b) convict both, or (c) acquit one and convict the other.
Should they convict both it will usually be on the basis implicit in the joint count that they helped each other to commit the crime, but the jury may equally convict both where the evidence suggests that they acted independently of each other if they are satisfied that each accused committed the offence.
Similarly, if there is a split verdict, the verdict against the convicted accused is not open to challenge on the ground that the jury must have found that the accused acted alone without assistance either from the acquitted co-accused or anybody else.
The argument that to uphold convictions on a single count in the absence of proof of joint enterprise contravenes the rule against duplicity was rejected in DPP v Merriman.
Despite this, the prosecution are well advised only to draft a joint count where the evidence reveals a joint enterprise.
If the co-defendants were acting without reference to each other, separate counts are preferable.
Separate Counts
The joining of two or more accused in one indictment notwithstanding the absence of a joint count against them is now permitted by CrimPR 3.29.
Assim: In that case, the indictment against D1 and D2 contained two counts. The first alleged that D1 had maliciously wounded W, and the second alleged that D2, on the same day, had caused actual bodily harm to L. D1 and D2 both worked at the premises where the two assaults had allegedly occurred, a nightclub of which both the victims were customers.
On appeal, D1 argued that it was bad in law to charge two different people in one indictment with two different offences. Offenders could properly be joined in one indictment only as principals said to have jointly committed one offence, or as principals and accessories.
A five-judge Court of Appeal extensively reviewed the authorities, and reached the following conclusions:
(a) Questions of joinder, whether of offences or offenders, are ‘matters of practice on which the court has, unless restrained by statute, inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice’. On the assumption that the rule covers only joinder of offences, the propriety of the joinder of offenders is unaffected either by the Indictments Act 1915 or by any other legislation, whether subordinate or primary, passed since then Assim should be accepted as laying down a principle that joinder of offenders is a matter of the practice of the courts.
(b) Since joinder of offenders is merely a matter of practice, errors in the application of the relevant rules, though amounting to an irregularity in the proceedings, will not deprive the trial court of jurisdiction. Consequently, the Court of Appeal is entitled to dismiss an appeal against conviction advanced on this ground if there has been no miscarriage of justice and especially where there has been a failure by the defence to object to the joint trial.
(c) joinder is appropriate if the offences separately alleged against the accused are, on the evidence, so closely related by time or other factors that the interests of justice are best served by a single trial. His lordship said
As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.
(d) It was conceded by the appellant and accepted by the court that, where there is a joint count against two accused, that count may be followed by a separate count or counts against one or more of the accused even in relation to a distinct matter, provided that there is no breach of r. 3.29(4).
(e) On the facts of Assim, the joinder of D1 and D2 in one indictment was clearly proper, however narrowly any rule as to joinder of offenders might have been formulated. Having regard to the rule of practice Sachs J had stated, the counts they faced were so closely related by time and other factors that indicting the accused jointly was the correct course.
