PANAYIOTIS KYRIACOU ν. THE POLICE. (V22) 1 CLR 213

(1)(b). At the conclusion of the case for the prosecution the Justice ordered the alteration of the charge by the substitution of a new count, and proceeded there and then to put the appellant upon his defence. The provisions of section 82 of the Criminal Procedure Law, Cap. 14, which regulate the procedure to be followed upon an alteration of a charge, were not complied with. Held: that the object of section 82 of the Criminal Procedure Law, Cap. 14, was quite clear from its provisions and it required no expounding for the purposes of this case. The appellant was not called upon to plead to the new offence alleged in the altered charge, and, in the absence of this fundamental initial step in procedure there was no trial and the proceedings were a nullity; and that, in these circumstances, there was no question of the application of the proviso to section 142

(1)(b) of the Criminal Procedure Law, Cap. 14, on the ground that no substantial miscarriage of justice had actually occurred. Conviction and sentence set aside. Cases referred to:

(1)R. v. Jennings 33 Cr. App. R. 143.

(2)R. v. West and others

(1948)1 K.B. 709.

(3)R. v. Furlong and others 34 Cr. App. R. 79. Appeal against conviction. The appellant was convicted at the Special Court of Larnaca on the 12th November, 1957 (Case No. 292/57), of the offence of possessing a seditious document contrary to sections 57 (

1. a)and 47 of the Criminal Code, Cap. 13, and was sentenced by Trainor, Special Justice, to 12 months' imprisonment. The appellant was acquitted of the original offence of possessing a document is Rued on behalf of an unlawful association, to wit, E.O.K.A., under sections 57 (
2. b)and 60 (
3. d)of the Criminal Code, Cap.13. G. Achilles and M. Triantafyllides for the appellant. Sir James Henry, Q.C., Attorney-General with J. Ballard for the respondents. The facts of this case sufficiently appear in the judgment of the Court which was delivered by:- BOURKE C.J.: The; appellant was charged before the Special Court at Larnaca with the offence of "Possessing a seditious document contrary to sections 57 (
4. b)and 60 (
5. d)of the Criminal Code, Cap. 13, as amended by section 2 of Law 27 of 1919 and section 8 of Law 20 of 1955." In the particulars of the offence it was alleged that the appellant "did have in his possession a document in Greek.... which was issued on behalf of an unlawful association, to wit, E.O.K.A.'." The appellant pleaded not guilty to that offence and evidence was heard. At the conclusion of the case for the prosecution a submission of no case was made apparently on the ground that there was no, evidence to show that the document in question, exhibit 1, was issued on behalf of an unlawful association as alleged. Police Sergeant Christodoulou appearing for the prosecution thereupon applied to amend the charge. The appellant's Counsel Mr. Achilles does not seem to have taken any strong exception to such a course but he did indicate to the learned Justice that in the circumstances he would be justified in declining to accede to the application. The Court proceeded to order the alteration of the charge by the substitution of a new count. A note of the order for the alteration of the charge was not made upon the charge in accordance with the requirements of section 81

(2)of the Criminal Procedure Law, Cap. 14: nothing however now turns upon this irregularity by omission. What the Justice did was to delete the reference to the sections under which the Original offence was laid and to insert instead and initial a reference to sections 57 (a) and 17of the Criminal Code as amended; further, the words in the particulars-"which was issued on behalf of an unlawful association, to wit, 'E.O.K.A.' " were struck out and replaced by the words "having a seditious intention." The effect of the alteration was that the appellant stood charged with a different offence to that originally alleged against him and under section 81

(2)the charge as altered fell to "be treated for the purpose of all proceedings in connection there with as having been filed in the altered form." Having effected this change in the offence to be tried the learned Justice proceeded there and then to put the appellant upon his defence; he was informed of his rights in accordance with section 72 (c) of Cap. 14 and upon his election he proceeded to make an unsworn statement from the dock. The provisions of section 82 of Cap. 14, which regulate the procedure to be followed upon an alteration of a charge, appear to have been overlooked by all concerned. It is as well to quote that section: "82.

(1)When a charge or information is altered as in section 81provided, the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such altered charge or information.

(2)If the accused declares that he is not ready, the Court shall consider the reasons he may give and, if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case, the Court may proceed with the trial as if the altered charge or information had been the original one.

(3)If the altered charge or information is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor, the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary.

(4)When a charge or information is altered by the Court after the commencement of the trial the evidence already given in the course of the trial may be used without being reheard but the parties shall be allowed to recall or re-summon any witness who may have been examined and examine or cross-examine such witness with reference to such alteration." It is now submitted on behalf of the appellant that since there was no compliance with the requirements of that section the trial was bad and amounted to a nullity. Though there were points of similarity the offence alleged under the altered charge was in its essence a totally different offence from that originally charged and the appellant had not been called upon to plead to it; moreover he had not been required to state whether he was ready to be tried upon such altered charge. It is argued on behalf of the Crown that no prejudice was suffered by the appellant and that the essential ingredient of the new offence, namely, the specific intention alleged, was sufficiently established from the contents of the document itself which was already in evidence; moreover, counsel for the defence took no step of his own initiative towards seeking the recall of any witness or a postponement of the trial. Reference has been made to such cases as R. v. Jennings, 33 Cr. App. Rs. 143 and R. v. West & Ors.

(1948)1 K.B. 709 determining questions arising under section 5

(1)of the Indictments Act, 1915. Reference has also been made to R. v. furlong & Ors. 34 Cr. App. Rs. 79 and to the following passage in the judgment of the Court (at p.

(84)-"It is impossible to say that every irregularity is a ground for quashing a conviction. It may, and not infrequently does, happen that something is done in the course of a trial which is not strictly in accordance with recognised procedure. If that is so, the Court must consider whether or not it is an irregularity which goes to the root of the case..." We are invited to hold that such irregularity as occurred in the course of this trial did not go to the root of the matter and to dismiss the appeal by applying the proviso to section 142

(1)(b) of Cap. 14 on the ground that no substantial miscarriage of justice has actually occurred. We have no doubt at all that such a course is not open to us in the circumstances of this case. We are concerned with provisions which do not exist in the English statute. When the charge was altered to allege a new offence the appellant had to meet a case essentially different from that which had presented itself to his mind from the outset, and one to which he might well have wished to put forward an entirely different defence: it is idle to speculate whether it is likely that he could have done so with any chance of success. He might, on the other hand, had he been given the opportunity envisaged by the law, have chosen to take the course of pleading guilty and throwing himself upon the mercy of the Court in the matter of sentence. The plea to the original offence alleged could not be taken as a plea to the substituted new offence. The obligation to comply with section 82

(1)and forthwith to call upon the appellant to plead to the altered charge was, in our clear opinion, as necessary as the first step in the proceedings under which, having regard to the provisions of section 61 of Cap. 14, he was called upon to plead to the original and unaltered charge. Neglect to comply with either course as required by law would simply result in there being no trial at all. In such circumstances there can of course be no question of the application of the proviso to section 142

(1)(b). The object of section 82 is quite clear from its provisions and it requires no expounding for the purposes of this case. The appellant was not called upon to plead to the new offence alleged in the altered charge and in the absence of this fundamental initial step in procedure there was no trial and the proceedings were a nullity. In the circumstances we do not consider the remaining ground of appeal. The appeal is allowed and the conviction and sentence set aside. Conviction and sentence set aside. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο