THE MATERIAL DIFFERENCE UNDER THE THAI CRIMINAL PROCEDURE CODE, SECTION 192 PARAGRAPH THREE

Abstract

The principle of “Non Ultre Petita” under The Thai Criminal Procedure Code, Section 192 is to restrict scope of the consideration and judgment of the court to safeguard rights of defense of defendant. The court shall not consider the fact which is not mentioned in the charge or request to punish the defendant. The court shall dismiss every case where the fact is found being different from the lawsuit. To control and suppress crime and remain equality in the processes of judgement, the exception of such principle is imposed in the second paragraph which is the court shall be able to punish the defendant if the difference between the fact found in the trial and the fact mentioned in the lawsuit is not material difference and the defendant has not been misted. The second paragraph must be considered together with the third paragraph which is “…In the case where such difference is merely a detail, concerning time or place where the offence took place or difference between the commission of theft, extortion, blackmail, fraud, defrauding of creditors, embezzlement, receiving stolen property and damage to property or difference between the offence committed by intention and negligence, such difference shall not be regarded as a material difference, unless it appears to the court that the defendant has been misted by the mistake in the charge…” in order to be aware which of difference is merely a detail and not material difference. The problem occurs when the court cannot to punish the defendant because it is not the offence specified in the third paragraph although the facts found in the trial are elements of crime as per verdicts of Supreme Court from the case No. 2624/2541, 4976/2556, 831/2532 and 4/2530.

             Due to the problem above, there was research conducted to settle the problem in relation to the material difference in foreign countries i.e. England and Germany.  In England, the problem was settled by applying the exception of principle of Lesser included offence supporting enactment to impose the exception in the law enabling the court to punish the defendant for Particular Offence discovered during the trial where the fact found in the trial is not regarded to be different from the fact mentioned in the lawsuit. In Germany, the problem was settled by using the “geschiohlicher Vorgang” which the incorrectness of time or place that the crime has been committed, particulars of sufferer or other facts occurred from description of event sequence in the lawsuit is not regarded as the material difference.

             Thus, third paragraph of section 192, should be amended by applying the principle of the description of event sequence in the lawsuit as well as it has been applied in Germany. The court should determine a criterion to consider the material difference between the fact found in the trial and the fact in lawsuit based on legal interest.  Any fact which is subject to safeguard under legal interest, shall not be regarded as the material difference.  Then, the problem will be settled.