Prosecution for Several Counts Resulting from a Single Criminal Act

It is an inevitable fact today that one criminal act can inflict upon several victims harm of a certain nature. In doing so, the criminal act flowing from the same criminal intention or negligence and violating the same criminal provision may cause the same harm against the rights or interests of more than one person. In such instances the law dictates the liability to be equalled with the numbers of victims though the practice shows divergence among courts and prosecutors.

1.  Introduction

The purpose of criminal law is to ensure order, peace and the security of the State, its peoples, and inhabitants for the public good.  Prevention of crime, deterrence of offenders and reforming are the vital objective of criminal law. Taking into account the above objective and purpose, the criminal law provides the rules as regards how a certain person entails liability and also the law itself lays down certain protection from being manipulated by criminal justice process. That is why the law prohibits a person not to hold liable unless all legal, material and moral ingredients of crime are present in all cases irrespective of its nature.  Depending on the intended social objectives of criminal justice system, it is inevitable that in the application of "the law" to cases, there must be certain determinations as to the nature of the offense charged, the number of offenses committed, and the responsibility of the defendant to answer the charges. In dealing with the above issues the law and courts have relied on the act and consequence of the act giving rise to the liability, the intention or negligence and of course accumulated with the law criminalizing or punishing the matter. In most of the criminal cases the moral, legal and material elements are all single. In some instance however, one or two of the three elements of crime could be single while the other ingredients of crime could be multiple. For instance, it is not uncommon for a single criminal act or transaction to result on a number of different victims.

2. The Law on Multiple Prosecution Resulting from Single Criminal Act

2.1. The Law on Multiple Prosecution Introduced

According to Philip Graven, Tsehai Wada and Jocelyn M. Pollock Rules relating to concurrence are found on limited number of criminal law codes. A multiple prosecution of one offender or a group of offenders participating as a principal criminal could result from different circumstances. These situations are provided under chapter two sub-section two of the Ethiopian criminal code dealing with concurrence. Concurrence of crimes refers to a situation where there exists several unlawful acts done in contravention of one or more article of the law, or when there exists one unlawful act done in contravention of several articles of the law. These are classified into material or notional concurrence. Material concurrence (concurrence of offences) occurs “when the criminal successively commits two or more similar or different crimes, whatever their nature.” Notional concurrence (concurrence of provisions), however, occurs “when the same criminal act simultaneously contravenes several criminal provisions or results in crimes with various material consequences; or in the case of a criminal act which, though flowing from the same criminal intention or negligence and violating the same criminal provision, causes the same harm against the rights or interests of more than one person.” These are instances where multiple prosecutions could result on one offender or group of principal offenders as the law provides that the offenders will be liable for both of the crimes whether they are material or notional concurrence.

2.2. The law on Concurrence in Cases of Crimes Committed Against more than One Person

When three elements of crimes i.e. moral, material and legal elements are present in any case the offender will be found guilty of the crime he is suspected of. As said above it is not unusual that one of the three elements of crime could be single while the other elements of crime could be multiple. One of this is when a single act could give rise to multiple consequences when an individual can harm different victims and get liable for all of those victims. In relation to this Ethiopian criminal law provides that a person commits concurrent crimes in the case of a criminal act which, though flowing from the same criminal intention or negligence and violating the same criminal provision, causes the same harm against the rights or interests of more than one person. The 1957 penal code of Ethiopia does not incorporate the same provision like that of the current criminal code. In relation to this Graven emphasizes the need for the current rules regulating the matter at hand. He says the one who causes the same harm to several persons should be punished more severely than if he causes harm to only one person. He also says it will not be fair to try the person who killed two persons with one bullet as one offence while punishing the other person who killed one person and injured the other with two counts. Contravening two provisions should not be the parameter rather the outcomes of the act should be. According to the current criminal law however, the multiplicity of the consequence resulting from single act entails multiple liability. There are cumulative requirements to handle cases accordingly though;

I.  Existence of the same criminal intent or negligence

The mere fact of violation of the same provision does not make a certain case fall under Article 60(c). Rather unlike material concurrence which requires successive commission of two or more similar or different crimes, here there is only one act that has materialized. For instance, it will be a case of material concurrence, if A unlawfully sends B, C, and D Ethiopians for work abroad on January 1st, February 1st and March 1st or even on a day difference. This is because the criminal committed an offence successively and there exists more than one act. So the parameter here is single act having multiple victims. For instance it is possible for one bullet to kill more than one person. If two or more people are standing back-to-back it can pass through all of them. Additional examples are insulting more than one person by one and the same insult or throws one bomb which kills or injures more than one person. A successive criminal act will not be considered as falling under this provision and it will be a case of material concurrence that is covered under Art. 60(a). It is not clear from the law what constitute “the same criminal intention or negligence.” But to better understand the situation, it is of necessity to make some illustrations. There is same criminal intent where a person taking of different items of property belonging to either the same or different owners at the same time and place (for e.g. condominium house owners). The same holds also true that taking 20 cattle on same time from one area but belonging to different individuals constituted one or the same intent. So for the purpose of considering cases falling under Article 60(c), the same criminal intent or negligence should be understood to exist where a defendant commits crimes during a single behavioral incident against multiple victims.

II. The criminal act must be violating the same criminal provision

The crimes committed here are not contravening several provisions of the law rather only one. For instance if A intended to kill B with a bullet but killed instead A intentionally and B negligently, he will be charged with intentional homicide of A and Negligence homicide of B provided that in the latter death the killer should or could have foreseen the occurrence within the meanings of Art. 59. But it should be born in mind that such acts are not what are envisaged under Art 60(c). This is because this provision requires violation of the same criminal provision.

III. Criminal act must cause same harm against the rights or interests of more than one person

Here there are two requirements. One is about occurrence of the same harm while the other is about multiplicity of victims. If X committed murder on Y and rape on Z this will not fall under this provision. Rather if drunk driving killing X and Y simultaneously will be concurrently tried under this provision as the consequence of single act occurred is the same..

2.3. Determination of Punishment

An independent mechanism of sentencing is provided for concurrence resulting from same act causing harm against the rights or interests of more than one person. In the criminal code the safeguard is afforded which protects the offenders from exaggerated punishment as a result of concurrence. Determination of sentence of concurrence of crimes as defined in Article 60(c) is determined based on Art 184. Accordingly, as far as the total penalty does not exceed the general maximum fixed for the kind of penalty applied in the General Part of the Code, the penalties are added together.  For instance concurrence of crimes punishable in simple imprisonment cannot in anyway exceed 5 year's while the rigorous imprisonment cannot exceed 25 years of imprisonment but may go to life imprisonment if specially provided. If capital punishment or life imprisonment is the punishment provided for only one of the same concurrent crimes, this penalty overrides any other penalties that would have been imposed on the other same concurrent crimes.

2.4. Exception to the Rule

The provision dealing with concurrence provides that court may aggravate the sentence on ground of concurrence and as such it treats concurrence as aggravating circumstance. Therefore, “When the law, in a special provision of the Special Part, has taken multiplicity of victims into consideration as a constituent element or as a factor of aggravation of a crime, the Court may not take this aggravation into account again”(Emphasis added). In such case Art. 60(c) could be irrelevant. For instance to constitute genocide one has to kill, bodily harm or serious injure a group members and death or harm of one person does not constitute genocide. The killing of one person by another is murder whether done because the victim is a group member of certain ethnicity or other political group. The same holds true that in order to constitute crime of Duels participants should be more than two. Therefore, if the special crime requires victims to be plural one cannot concurrently aggravate the crime for each of the victims.

3. The practice viewpoint on Concurrence in Cases of Crimes Committed Against more than One Person

3.1.    The Practice of Courts

It is clear from the discussion made under section two above that the legislatures did not intend to prevent the imposition of multiple sentences in cases of a criminal act which, though flowing from the same criminal intention or negligence and violating the same criminal provision, causes the same harm against the rights or interests of more than one person.

Such an understanding however seems to be lacking in certain circumstances in our courts in some instances. For instance, in one case the accused was bus driver heading to Bahirdar from Addis Ababa. While driving the car around Gesho River, the driver then removed his both hands from the steering wheel and started counting money. Then the inevitable car crash have occurred and as a result 6 of the passengers sustained grave injury. The prosecutor has brought six charges against the driver based on the principle of multiplicity of victims. Federal First Instance Court Menagesha criminal bench refused to accept the charge and ruled that the counts be only one irrespective of the number of the victims involved. The prosecutor appealed to the high court and surprisingly the Federal High Court Lideta Appeal Bench also sustained the ruling of the first instance decision. The Federal Supreme Court Cassation Division also dismissed the case on preliminary investigation saying the court has not made any error. The courts have it wrong that irrespective of fairness involved or irrespective of existence of single intention they should have applied article 60(c). It is even given as an example in the criminal code expose de motif (Explanatory note) that even if a person killed two persons with one bullet he should be charged with both homicides. In other case brought to Federal High Court Arada Criminal Bench the court have accepted the counts and found the accused guilty of all 5 counts. The accused was punished with 16 years of imprisonment. So there is diversion from courts to courts and from what the law provides.

3.2. The practice of prosecutors

The practices of prosecutors in applying Art 60(c) of criminal code differ from one to the other. One prosecutor might focus on the most serious victim and charge only with that. Another might want to file every charge supported by the evidence by incorporating all of the counts equaled with victims. For instance if we take the crime of unlawfully sending Ethiopians for work abroad which is provided under Article 598 there is divergence between prosecutors in framing charges based on Art. 60(c). For instance in one recent case 39 victims are found in in the container truck being unlawfully sent to abroad for work. But in this case the suspect driver was only charged with one offence containing one count. In another case of the same type the person is charged with only one count while there are four victims stated on the detail of the charges. This however, I must say, is a matter of luck as others are being charged with several counts. With the same offence covered under Art. 598 in another case the smuggler were found sending 28 victims abroad for a work. This smuggler was only charged with 5 counts containing five concurrent cases. The reason is that though he was found sending 28 victims only five victims were taken to police station to give testimony. The prosecutor opted to charge him with five counts only because the other victims are not listed as witness to the case. But surprisingly the charge tells the fact that the smuggler was caught sending 28 victims. Accordingly, the prosecutor here could have brought charge containing 28 counts but only charged the accused with five counts. The accused is found guilty of the five charges and sentenced to 16 years of imprisonment.

4. Analysis of the Effect of the Law and Practice

4.1. Choice of the law

The law in Ethiopia has opted for multiple liabilities in case of multiple victims. The logic behind such option is the fact that the legislatures have thought it to be unfair for one committing crimes against multiple victims to held liable equally with one committing crime only against one person. According to previous penal code one will be liable for two killing he committed with one bullet if the death of the first victim is intentional while the later was negligent. But if the two deaths occurred as a result of one intention or one negligence he will only be liable under one count only. The legislatures are right that the one who inflicts more damage should be held liable while those who do not should be held liable for less.

When one physical act causes injury to a number of persons, California and some other jurisdictions take the position that each murder is a separate offense. This doctrine was established in California in the early case of People v. Majors, in which the court stated that the murder of two persons, even by the same act, constitutes two offenses, for each of which a separate prosecution will lie, and that a conviction or acquittal in one case does not bar a prosecution in the other. There is no agreed way of resolving the matter, however, that some states and the federal courts, however, hold that the killing is but one crime and cannot be divided. In Ciucci v. Illinois the defendant was tried three times for the murder of various members of his family, all of whom were found dead in one burning building. Though some contend that prosecution of defendants for multiple counts of the same act will amount to double jeopardy, that however is not the case. In prohibition of double jeopardy no person shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the criminal law and procedure. The person here is to be prosecuted for the death or harm that he inflicted not to the one for which he is already held liable but for the other victim which constitute an independent crime and as such it does not amount double jeopardy. Some however argue that “Since it is the state who is the injured party in a criminal prosecution because its law has been breached, there is but one breach of the statute and thus only one injury when there is a single act.” Our law does not however accept this. The others claim that if there is “plurality of intent” to injure more than one person, “according to this theory the number of crimes will correspond to the number of persons intended to be injured.” The last theory follows that when two or more persons are killed or injured, though it be by a single act, the number of crimes corresponds to the number of victims. The Ethiopian model rightly follows the last model in which number of crimes will correspond to the number of persons injured.

4.2. An Analysis of the Departure from the Order of the Law

The law orders counts to be equaled with victims. As we have seen the practice above however departs from the essence of the law and results in differential treatment of the same criminal. While one is punished up to 16 years of imprisonment the other having more victims than the former is only punished for not more than four years of imprisonment. The factors affecting the departure from the order of the law is the fact that while some wrongly assume that Article 61 of criminal code is applicable others contend that it is not fair to charge a person with several counts while he has done only one act with one intention or negligence. But such conception is self-defeating as mentioned below.

4.3. The Practice of Differential Treatment and Fair Criminal Justice System

One of the aims of criminal justice system is a fair treatment of suspects or criminals. Serving justice is reflected in Justitia, the blindfolded lady justice who holds a sword and scales and adorns many courthouses and even standing in-front of Addis Ababa University Law School. If we are not able to keep offenders responsible for their conduct we can say justice is not served while if they are made responsible, we say that justice is served and this is referred to as corrective justice. The scales and blindfold leady are representation of fairness. This conception of justice assumes that all persons will be treated equally in the eyes of the law – that justice will be blind. “Justice thus would not be present when any group is somehow left out or singled out for differential treatment by the law. This type of justice is referred to as procedural justice, or justice as a process.” Fair criminal justice is a myth, with the practice of sending criminal for 16 years of imprisonment and the other four to five years while the latter is the one causing harm to several victims than the former. Disparity exists both with prosecutor and courts in handling criminals or suspects having multiple victims. Moved by fairness towards one offender, prosecutors are committing unfairness towards the whole criminal system, as for instance, if one prosecutor feels that for all 28 victims having 28 counts are unfair while the other prosecutor charges suspect with 38 counts having 38 victims. Therefore, differential treatment of the same offenders differently makes the fair criminal justice system myth. It is against the essence of the law on equality that criminal law applies to all alike without discrimination based on any ground or status. No difference in treatment of criminals may be made except as provided by law. If determination of counts in a charge is conducted based on personal feeling rather than the law, enforcement of criminal law will surely result in unfair criminal justice.

4.4. The Predictability of Criminal Law

One of requirements of rule of law is the legal certainty which is a principle in national and international law. But this predictability however is eroded by practical uncertainty, as those assigned to prosecute and judge are ignorant of the order of the law in this regard. If a certain suspect asks his lawyer what would be his fate he would say that actually it is a matter of fate. This is because though the law is clear on the matter, it is not easy to predict whether how much counts the prosecutor would be charging you with or even if the prosecutor comes up with multiple charges the judge may order amendment. As such liability for crimes committed against more than one person is becoming unpredictable at the same time defeating the vision of FDRE Criminal Justice Policy which envisaged predictable criminal justice system. By departing from the law, the courts and prosecutors are defeating desiderata of consistency and predictability of criminal law which underlie responsible legal system. 

Conclusion

When single criminal act inflict upon several victims harm of certain nature, the law dictates the liability to be equaled with the numbers of victims though the practice shows divergence from courts to courts and from prosecutors to prosecutors. The law has it right that those who inflicted several harm should be held liable more than those who resulted in less. But diverting from the dictate of the law in handling the matter could result in differential treatment of the criminals or suspects and unfair criminal justice and at the same time making criminal justice system unpredictable. As a result of the effect that are shown above I urge all those who are involved in criminal justice administration to take into consideration the order of the law which obliges for concurrence of crimes i.e. the counts to be equaled with victims.