AZINAS AND ANOTHER ν. POLICE (1981) 2 CLR 9

(1981)2 CLR 9 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1981)2 CLR 9 1981 October 16 [HADJIANASTASSIOU, A. LOIZOU, MALACHTOS AND SAVVIDES, JJ.] ANDREAS AZINAS AND ANOTHER, Appellants, v. THE POLICE, Respondents. (Criminal Appeals Nos. 4214-17). Criminal Procedure-Trial of criminal cases-Submission that no prima facie case has been made against accused-Approach to-Section 74

(1)(

1. b)of the Criminal Procedure Law, Cap. 155. Evidence-Statements to Police-Admissibility-Voluntariness-Judges' Rules-Not Rules of Law but Rules of practice for guidance of the police-Absence of caution-Whether statement inadmissible-Form of caution-Applicability of rules II and III of the Judges' Rules. Fair trial-Criminal case-Tried contemporaneously with sittings of Commission of Equiry which was set up to inquire, inter alia, into matters relating with conduct of accused-Fair trial of accused not adversely affected because he has been tried by a Judge and not by a Jury. Criminal Procedure-Charges-Framing-Duplicity-Stealing charges-Attaching schedules to the charge-sheet-Though undesirable, in the circumstances of this case, charges not bad for duplicity-Proviso to section 39 of the Criminal Procedure Law, Cap. 155. Stealing-Stealing by agent-Sections 255, 270(
2. b)and 257 of the Criminal Code, Cap. 154-Ingredients of the offence-Stealing money entrusted for a particular purpose by giving it for another purpose-"Fraudulently" and"without a claim of right" in section 255

(1)of the Criminal Code-Meaning-Such cases to be approached by reference to Cyprus Criminal Code and not to the Common Law-Proof of ownership of the money and absence of consent of owners-Whether absence of consent of all persons who entrusted money has to be proved-Time of "taking" of money by appellants was the time of using it for purposes other than those specified-Whether identification of the money stolen needed-Platritis v. Police

(1967)2 C.L.R. followed-R. v. Feely [1973] 1 All E.R. 343, adopted inZissimides v. Republic

(1978)2 C.L.R. 382, not applicable. Stealing-Stealing by agent-Sections 255, 270(

1. b)and 257 of the Criminal Cod, Cap.154-Drafting of charges-Statement of offence-Non-inclusion of section 257 therein-Conviction not a nullity. Criminal Procedure-Charges-Drafting-Statement of offence-Stealing by agent-Sections 255, 270(
2. b)and 257 of the Criminal Code, Cap.154-Non-inclusion of section 257 in statement of offence-Conviction not a nullity. Evidence-Admissibility-Charge of stealing by agent-Certified copies of lists in possession of Co-Operative Institution-Rightly admitted in evidence under section 31 of the Co-Operative Societies Law, Cap. 114. Co-operative Societies Law, Cap. 114-Section 31 of the Law-Identical with provisions of the Bankers Books Evidence Act, 1879- Constitutes an exception to the hearsay evidence rule and is not contrary to the provisions of the Evidence Law, Cap. 9. Breach of trust affecting the public-Section 133 of the Criminal Code, Cap. 154-Ingredients of the offence-"Trust" meaning- "Public" meaning-Whether ordinary negligence enough to prove the offence and whether willful negligence required. Words and phrases-"Trust"-Public"-"Fraudulently"-Meaning. Criminal Procedure-Charge-Particulars-Asked for and given during the trial-Whether absence of particulars can be raised on appeal. Criminal Procedure-Trial of criminal cases-Evidence-Within province of trial Judge to believe or disbelieve evidence given by the parties. Criminal Law-Offences-Same set of facts can make more than one offence-What matters is whether ingredients of the offence have been proved. Common Law-Principles of-Applicability in Cyprus. Criminal Law-Parties to offences-Aiders and abettors-Section 20 of the Criminal Code, Cap.154-Law applicable. Stealing-Stealing by agent-Aiding and abetting-Section 20 and sections 255, 210(
3. b)and 257 of the Criminal Code, Cap. 154-Stealing money entrusted for a specified purpose by paying it for another purpose-Aider and abettor truly believing or taking it for granted that payments were within the specified purpose-Should have been given the benefit of doubt. Criminal law-Sentence-Appeal against sentence-Approach of Court of Appeal-Stealing by agent, breach of trust affecting the public and abuse of office-Sentences of six months to eighteen months' imprisonment-Not manifestly excessive in the circumstances of this case. Criminal law-Sentence-Disparity of sentence as a ground of appeal-Principles applicable-Imposition of punishment should be proportionate to participation in the crime-Eighteen months' imprisonment on principal offender and twelve months' on aider and abettor -Differentiation made by trial Judge inadequate to recognise the difference between their cases-Sentence passed on aider and abettor wrong in principle and manifestly excessive-Reduced. The appellants were convicted by the District Court of Nicosia on six counts of the offence of stealing by an agent, contrary to sections 255, 270(
4. b)and 20 of the Criminal Code, Cap. 154; on six counts of the offence of abuse of office by a public servant, contrary to sections 105 and 20 of the Criminal Code; and on six counts of the offence of breach of trust affecting the public, contrary to sections 133 and 20 of the Criminal Code; and appellant 1 was sentenced to concurrent sentences ranging from six to eighteen months' imprisonment and appellant 2 to concurrent sentences of six to twelve months' imprisonment. Appellant 2 was convicted as aiding and abetting appellant 1 contrary to section 20 of the Criminal Code. Moreover appellant 1 was convicted on three more counts which related to each of the above offences. Appellant 1 was at all material times a public servant holding the post of Commissioner of Co-operative Development; and appellant 2 was holding the post of Director of the Co-operative College, but he was not a public servant. Following the Turkish invasion of Cyprus many employees of the Co-operative movement had to leave their homes and became, thus, displaced and unemployed. On December 22, 1974, appellant 1 convened a meeting with a view to finding ways and means to improve the position of these employees. At this meeting it was decided to set up a fund called the "Self-Assistance Fund" for the purpose of rehabilitation of the displaced co-operative employees by granting to them financial aid. There followed circulars signed by appellant 1, in his capacity as Commissioner of Co-operative Development, which were addressed to Co-operative Institutions and Co-operative employees, inviting them to contribute to the above Fund and that their contributions would be utilized for the displaced Co-operative employees who lost their jobs. As a result of the above circulars Co-operative Institutions and other persons made contributions to the "Self-Assistance Fund" which was under the administration of appellant 1. Appellant 1 aided by appellant 2 made payments out of the above Fund, amounting to £105,894.009 mils to third persons and for purposes other than those of the "Self-Assistance Fund". These payments formed the subject matter of the above counts and according to the particulars of the first six counts (stealing by agent) the appellants fraudulently converted, on various dates the said total sum of £105,894.009 mils, which was entrusted to the first appellant by Co-operative Societies and other persons whilst he was the Commissioner of Co-operative Development in order to pay the said sum to displaced and unemployed Cooperative employees and appellant 1 aided by appellant 2 paid the said sums to third persons for purposes other than those of the "Self-Assistance Fund". The particulars of the charge relating to the above offences of abuse of office by a public servant and breach of trust referred to the payment of the above sums to the same persons and generally to the facts constituting the offence of stealing by agent. Appellant 2 was involved in the administration of the "Self- Assistance Fund" and he knew very well the purposes for which it had been created. Payments from the fund were made through cheques prepared in his office, he was making announcements inviting the persons entitled to payments from the Fund to go and collect their cheques from his office and was aware of everything that was done by appellant 1. The name of the "Self- Assistance Fund" was changed in September, 1978. In the course of investigating the above offences the police took a statement from appellant 1 on the 1st May, 1980 and before cautioning him the investigating officer made the following statement: "I inform you that I am carrying out investigations with regard to offences, which in accordance with the material I have in my hands, you have committed in your capacity as Commissioner of Co-operative Development and Registrar of Co-operative Societies". Appellant 1 was then questioned and his statement was in the form of questions and answers. The trial Judge in ruling that the statement in question was admissible held that once the material which the police had in their hands at the time did not justify the bringing of charges against appellant 1 the statement was admissible because rule II of the Judges' Rules was applicable. Upon appeal against conviction and sentence Counsel for the appellants contended:

(1)That the conviction of appellant 1 was the result of a substantial miscarriage of justice inasmuch as in deciding the submission of counsel for the appellant that the prosecution did not prove a prima facie case against the appellant, the trial Judge, by its ruling of the 24th January, 1981, decided certain matters affecting the guilt or innocence of the appellant finally and before having heard the evidence of the appellant and his witnesses contrary to the accepted principle of law that the final pronouncement of the guilt or innocence of an accused person should be pronounced only after hearing the whole of the case including the appellant's version.

(2)That the trial Judge erroneously accepted and received in evidence the statement made by appellant 1 to the police on the 1st May, 1980, which statement materially affected the final verdict. The objection to its admissibility being that it was rule III of the Judges Rules which was applicable and no rule II; and that since rule III was applicable only in exceptional cases questions relating to the offence should have been put to the appellant and this after cautioning him in the terms prescribed by paragraph (b) of rule III; and not in the terms of rule II as was done in this case.

(3)That appellant I was prejudiced because of the contemporaneous sittings of the Commission of Enquiry, set up by the Council of Ministers to enquire into, inter alia, the conduct of officers of the Co-operative Movement and the press publications of such sittings which were most of the time misleading, with the sittings of the Court in the present criminal case, adversely affected the fair trial of the appellant to such an extent as to render his conviction and sentence unconstitutional and illegal.

(4)That the framing of the charges with schedules attached to the charge-sheet giving details of the various payments was faulty because it introduced more than one offence contrary to the basic procedural rule against duplicity.

(5)That the trial Court erroneously found appellant 1 guilty of the offences of stealing by agent under sections 255 and 270(

1. b)of the Criminal Code Cap, 155, inasmuch as section 270(
2. b)creates the offence of fraudulent conversion and not the offence of stealing by an agent; and the non-inclusion in the relevant counts of section 257 of the Code makes the conviction of the appellant on these counts a nullity.

(6)That the trial Court erroneously convicted the first appellant of the offences of stealing by agent once the following necessary ingredients of the offence under sections 255 and 270(

1. b)of the Criminal Code had not been proved by the prosecution: (
2. a)that appellant acted "fraudulently"; (
3. b)that there was no averment and no proof of the ownership of the money, subject-matter of the relevant counts, in the charge-sheets; (
4. c)that there was no proof of the absence of the consent of the owners for the actions of the appellant; (
5. d)that the prosecution failed to call all owners of the money, subject-matter of the said counts, to give evidence; (
6. e)that the absence of proof that at the time the money was being entrusted to appellant there was no intention on his part to deprive the owners of the money of the Fund or their property; and (
7. f)that there was no evidence of any taking by the appellant of the money in the sense of section 255 of the Criminal Code since the said money was being lawfully paid into the Fund by the various donors of the Fund.

(7)That the offences of stealing by agent have not been proved because there has not been an identification of the money. This contention was based on the fact that money belonging to the "Self-Assistance Fund" was amalgamated with the money belonging to another Fund namely the Fund of EthnarchMakarios III.

(8)That the trial Judge erroneously accepted as evidence the lists and other connected documentary evidence in respect of the donors to the Fund, relying on section 31 of the Co-Operative Societies Law, Cap. 114, because section 31 was not applicable and could not override the provisions of the Evidence Law, Cap. 9.

(9)That the trial Judge erroneously found appellant 1 guilty of the offences of breach of trust contrary to section 133 of the Criminal Code, Cap. 154.

(10)That the particulars of the offences in the charge-sheet were not complete.

(11)That the verdict of the trial Judge concerning appellant I on all counts is contrary to the weight of evidence and is not supported thereby, the trial Judge having wrongly accepted the evidence of the prosecution and rejected that of the defence.

(12)That appellant I could not be found guilty of the offences of abuse of office and breach of trust because he was found guilty of the offence of stealing by agent.

(13)That the trial Judge wrongly found that appellant 2 was aiding and abetting appellant I on various counts, by virtue of the provisions of section 20 of the Criminal Code, because there was no evidence establishing any conduct on his part that would render him guilty.

(14)That the trial Judge wrongly found that appellant 2 knew the purposes of the "Self-Assistance Fund".

(15)That the sentence passed on appellant I was manifestly excessive.

(16)That the sentence imposed on appellant 2 was manifestly excessive and wrong in principle because it contravened the principle of disparity of sentence. Held,

(1)that the mere fact that the trial Judge decided in his ruling, which he gave on the submission of the defence that there was no case to answer, the relevant elements of the offences which the appellants were facing does not mean that the Judge decided their guilt before hearing them; that, on the contrary, it has helped the defence by pointing out in his ruling what the legal aspect of the case was; that the trial Judge never dealt with the evidence adduced, and indeed, he never decided the guilt of the appellants as the defence had argued; that the trial Judge followed the proper approach as laid in the relevant case-law; accordingly contention

(1)must fail (see Practice Note issued in 1962 by the Divisional Court of the Queen's Bench Division of the High Court of Justice in England; Wiseman and Another v. Borneman and Others [1969] 3 All E.R. 275 at p. 277; Rex v. Kara Mehmed, 16 C.L.R. 46 and R. v. Galbraith [1981] 2 All E.R. 1061).

(2)That the basic criterion which is taken into consideration by a trial Judge for admitting or not the statement of an accused person, is whether it was given voluntarily; that compliance, however, with the Judges' Rules would help considerably a Court to decide as to whether the statement taken was given voluntarily or not; that the question whether a person has been duly cautioned before making a statement is a circumstance to be taken into account by the Judge in exercising his discretion whether to exclude the statement, but the absence of a caution does not as a matter of law make the statement inadmissible; that the Judges' Rules are applicable in Cyprus in exactly the same way as they are applicable in England and therefore they do not have the force of law, but are rules of practice for the guidance of the police officers and not for the circumscription of the Judicial power (see section 8 of the Criminal Procedure Law, Cap. 155); that the phraseology used by the police in this case does not form part of the caution as it is stated in the Judges' Rules, rule II, but it is an introduction to the subject only, and therefore, there is no particular phraseology which is binding; that, furthermore, the phraseology used by the police does not mean that the investigating officer had informed the accused that he had in his hands evidence which justified criminal proceedings; that, therefore, the trial Judge rightly accepted the statement of appellant I; accordingly contention

(2)must fail.

(3)That appellant I was not prejudiced because of the contemporaneous sittings of the Commission of Enquiry because in Cyprus there is no jury system; that this case has been tried by an experienced Judge who has been sitting on the bench listening to the arguments of all counsel for a long time and with his training he was in a position to discard extraneous matters and publications, and not to allow himself to be influenced by anything outside his Court, as he himself clearly stated in his ruling on this point; accordingly contention

(3)must also fail.

(4)That though the course of attaching schedules to the charge-sheet is undesirable and this Court has certain misgivings with regard to the framing of the charges, finally, in view, particularly, of the proviso to section 39 of the Criminal Procedure Law, Cap. 155 to the effect that no error in stating the offence or the particulars required to be stated in the charge shall be regarded at any stage of the case as non-compliance with the provisions of this law unless in the opinion of the Court, the accused was in fact misled by such error, it would support the ruling of the trial Court that the charges were not bad for duplicity; accordingly contention

(4)should fail.

(5)That independently of the name one gives to the offence it is clear that the Judge found the first appellant guilty of stealing as it is laid down in sections 255 and270(

1. b)of the Criminal Code; that what really matters is whether the relevant ingredients of the offence can be proved in the present case; that, of course, if that offence happens to be named fraudulent conversion in England it does not mean that it must be named also here fraudulent conversion, in view of the fact, that in the margin of section 270 it is described as stealing by an agent; that the mere fact that section 257 was not used does not mean that there is no offence because the offence exists by combining the proviso to section 255 with that of section 270(b); that, therefore, the non- inclusion of section 257 in the relevant counts does not make the conviction of appellant I a nullity; accordingly contention 5 must fail (Platritis v. Police distinguished; see, also, section 39(
2. c)and proviso to section 39 of the Criminal Procedure Law, Cap. 155).

(6)(a) That under the relevant sections charging the accused it is essential that three things should be proved by the prosecution to the satisfaction of the Court; first, that the money was entrusted to the accused person for a particular purpose; secondly, that he used it for some other purpose; and thirdly that such misuse of the money was fraudulent and dishonest; that for the money to be considered as being "entrusted" no written evidence nor the creation of an official entrustment is required; that the phrase "fraudulently" and "without a claim of right made in good faith" in s.255

(1)of the Criminal Code mean that both the possession and the taking must be made intentionally, without a mistake of the person liable and it must be made without a claim of right made in good faith that the property belonged to another person; that, in other words, that phrase does not mean taking by fraud or defrauding (katadolievsi) but it means intentional and deliberate and not under the mistake that the property belonged to some other person; that the fact that a persom liable of stealing may have a hope in the future to return the stolen money is a matter which can be taken into consideration in mitigation and does not amount to a defence; that it is safer to approach such case having in mind the provisions of the Cyprus Criminal Code instead of turning to the English Common Law which does not constitute directly the prototype of our legislation; that the purpose for which the money has been misappropriated is of no consequence once the owner has been deprived of his money; that the fact that such purpose was of a philanthropic nature or not is irrelevant because section 9 of the Criminal Code states that the motive is immaterial so far as regards criminal responsibility; that the fact that the appellant has not appropriated the money himself does not amount to a defence; that, therefore, the prosecution has proved that the appellant has acted fraudulently; accordingly contention 6(a) should fail. (Platritis v. Police

(1967)2 C.L.R. 174 followed; principle in R. v. Feeley [1973] 1 All E.R 341, which was adopted by the Supreme Court of Cyprus in Zissimides v. Republic

(1978)2. C.L.R. 382, to the effect that the intention of returning the money would constitute a defence, not applicable because the Feely case was decided under the provisions of the Theft Act, 1968, which are different both from the provisions of the Larceny Act, 1916 and sections 255 and 270 of the Cyprus Criminal Code and have thus no direct relevance to the interpretation of the Cyprus Statute on theft; and because though Cyprus Courts can apply the principles of the Common Law to the needs of Cyprus the Theft Act, 1968, contrary to the Larceny Act, 1916, was not based on and did not purport to codify the Common Law definition of theft (pp. 82-85 post)). 6(

1. b)That in the charge-sheet there are stated the persons which have entrusted sums to appellant 1 and for what purpose and that he converted the money and gave it for other purposes from those for which they entrusted it to him; that before the trial started full details have been given by the prosecution to the other side as regards the persons who gave money and the persons to whom money was given; and that, therefore, the counts of stealing by agent referred to the owners of the money; accordingly contention 6(
2. b)should fail (see section 39(
3. f)of the Criminal Procedure Law, Cap. 155 and Archbold, 36th ed. p. 694 paragraph 1908). 6(
4. c)That since the owners of the money gave the money for the purposes referred to in the circulars sent by appellant 1 and that since the said purposes have never been amended the consent of those who gave the money was given for that purpose only; that since 24 out of the 300 owners have not given their consent the prosecution has proved the element of consent; accordingly contentions 6(
5. c)and (
6. d)should fail (see section 255

(2)(

1. c)of Cap. 154). 6(
2. d)That the time of taking the money in this case was the time of giving it for purposes other than those which were referred to in the relevant circulars because the offence of stealing by agent is not a simple stealing under section 255 of Cap. 154 where the intention of appropriating money must be at the time of taking; that this was a case where money was lawfully given to the offender and later on he decided to misappropriate it; that, therefore, the prosecution has proved the presence of intention to deprive the owners of the money of their property; accordingly contentions 6(
3. e)and (
4. f)should fail.

(7)That once all the payments which were made and constituted the subject matter of the offences of stealing by agent were payments different from the purposes of the "Self-Assistance Fund", as well as the Fund of Co-Operativists in memory of EthnarchMakarios III, it is not necessary or indeed no reason existed to have the identification of the money; that, moreover, as the first appellant had deviated from the purposes of the two funds, the trial Judge was not bound to make a finding whether each particular donation from the fund fell or did not fall within the meaning of the circulars and give reasons for such finding; accordingly contention

(7)should fail.

(8)That as the provisions of section 31 of the Co-Operative Societies Law, Cap. 114, are identical with the provisions of the Bankers Books Evidence Act, 1879, they constitute an exception to the hearsay evidence rule and are not contrary to the provisions of the Evidence Law, Cap. 9; accordingly contention 8 must fail (see Attorney-General of the Republic v. Theocharides and Others

(1973)2 C.L.R. 75).

(9)That since the relevant ingredients of the offence of breach of trust are (

1. a)that the person liable must first be a public servant in the discharge of his duties; (
2. b)that there must be a trust; (
3. c)that there must be also a breach of trust; (
4. d)that the breach of trust must affect the public; and (
5. e)that there must exist a mensrea which in the present case is willful negligence, that is, a will to be negligent, an intentional breach of duty or reckless carelessness in the sense of not caring whether one's act or omission is or has not created a breach of duty; that since appellant 1 during the relevant period was a public servant and the success of the "Self-Assistance Fund" was due to appellant 1 not as an individual but because of the post he was holding; that since having regard to the meaning of the word "trust" (vide pp. 102-3 post) the trial Judge rightly reached the conclusion that there was a trust; that since the money, subject-matter of the relevant charges was given for purposes other than those for which it was donated; that since the Co-operative employees, for whom the money was collected, as well as those who have contributed to the "Self-Assistance Fund", were affected and that since the word "public" (see section 4 of the Criminal Code, Cap. 154) means the public in its totality or any other part of it, the trial Judge rightly found that the public was affected; that since ordinary negligence is not enough to prove the offence of breach of trust but there must exist willful negligence; and that since the trial Judge correctly accepted that appellant 1 acted deliberately willfully and without mistake that the property used by him belonged to another person, the trial Judge rightly found that the prosecution proved the ingredients of the offence of breach of trust; accordingly contention 9 should fail.

(10)That since the offences were described with every detail in the charge-sheet; that since during the trial the defence asked for particulars and after such particulars were given the defence has not raised again the issue of particulars it is too late to raise a complaint about absence of particulars at this stage; accordingly contention

(10)should fail (Kannas alias Pombas v. The Police

(1968)2 C.L.R. 29 at pp. 35, 36, 37 and 38 followed).

(11)That the trial Judge for the reasons given, accepted the evidence of the prosecution and rejected that of the defence; that in the particular facts of this case, this Court should not interfere because it is within the province of the trial Judge to believe or disbelieve the evidence given by the parties; accordingly contention

(11)should fail.

(12)That appellant 1 could be found guilty of the offence of stealing by agent and, also, of the offences of abuse of office and breach of trust because the same set of facts can make more than one offence and because what matters is whether all the relevant ingredients of the offence have been proved; accordingly contention

(12)should also fail.

(13)(After dealing with the principles governing aiders and abettors-vide pp. 118-120 post) That appellant 2 was rightly found guilty as an aidor and abettor because he knew the purposes of the "Self-Assistance Fund", because payments there-from were made unlawfully contrary to the purposes of the Fund and he was taking part in its administration; accordingly contention

(13)should fail.

(14)That appellant 2 was fully aware of the objects of the "Self-Assistance Fund" at least up to the change of its name in September, 1978; that appellant 2 took it for granted or really truly believed that after the change of its name the purposes of the Fund were widened to cover other charitable purposes; that having regard to this belief of appellant 2 the trial Judge ought to have given him the benefit of doubt regarding the payments made after that date with regard to three of the counts (counts 6, 12 and 18); accordingly the conviction of appellant 2 on counts 6, 12 and 18 should be quashed.

(15)(After stating the principles on which the Court of Appeal acts in appeals against sentence-vide pp. 128-129 post) That the Courts of this Country have treated with severity offences of this kind; that in the circumstances of this case the sentence imposed on appellant 1 is not manifestly excessive; accordingly the appeal of appellant 1 against sentence should fail.

(16)(After stating the principles governing disparity of sentence as a ground of appeal-vide pp. 138-141 post) That though the trial Judge, in dealing with appellant 2, said that in his case a differential ion was justified because the imposition of punishment should be proportionate with his participation in the crime he, has failed to consider the warning that "the distinction which the sentence has made in favour of the appellant is inadequate to recognise the difference between their cases" (see Principles of Sentencing by D. A. Thomas at pp. 71-73); that, therefore, this Court is bound to conclude that the extent of differentiation, regarding punishment, between appellant 2 and appellant 1 was wrong in principle, particularly in view of the role of appellant 1 in the commission of the offences in question as comparedwith that of appellant 2; accordingly the sentence passed on appellant 2 is wrong in principle and manifestly excessive and will be reduced to seven months on counts 2-5, 8-11 and 14-17. Appeal of appellant I against conviction and sentence dismissed. Appeal of appellant 2against conviction and sentencepartly allowed. Cases referred to: Wiseman and Another v. Borneman and Others [1969]: 3 All E. R. 275 at p. 277; Rex v. Mustafa Kara Mehmed, 16 C.L.R. 46; R. v. Galbraith, [1981] 2 All E. R. 1061; R. v. Osborne [1973] 2 W.L.R. 209 at p. 216; Kokkinos v. The Police

(1967)2 C.L.R. 217 at p. 227; Petri v. The Police

(1968)2 C.L.R. 40 at pp. 84-89; Ioannides v. The Republic

(1968)2 C.L.R. 269; R. v. Voisin [1918] 1 K. B. 531 at pp. 537-38; R. v. Prager [1972] 1 W.L.R. 260; Vrakas and Another v. The Republic

(1973)2 C.L.R. 139; Akritas v. Regina, 20 C.L.R. 110; Fatma Mehmet v. The Police

(1970)2 C.L.R. 62; Attorney-General of the Republic v. HjiConstanti

(1969)2 C.L.R. 5 at pp. 8-9; Iacovou and Others v. The Republic

(1976)2 C.L.R. 114 at p. 122; Platritis v. The Police

(1967)2 C.L.R. 174 at pp. 184, 185,188; King v. Grubb [1915] 2 K. B. 683 at pp. 689-90; Oktay v. Rex, 18 C.L.R. 195 at pp. 198-99; Rex v. Williams and Another [1953] 1 All E. R. 1068; Zissimides v. The Republic

(1978)2 C.L.R. 382; R. v. Feely [1973] 1 All E. R. 341 at p. 344; De Lasala v. De Lasala [1979] 2 All E. R. 1146 (P. C.); K. E. M. (Taxi) Ltd. v. Tryfonos

(1969)1 C.L.R. 52; Universal Advertising and Publishing Agency v. Vouros, 19 C.L.R. 87; HadjiTheodossiou V. Koulia andAnother

(1970)1 C.L.R. 310; Hillier and Another v. Attorney-General and Another [1954]2 All E. R. 59 at pp. 70, 71; James Hudson

(1943)Court of Criminal Appeal 43; Attorney-General of the Republic v. Theocharides and Others

(1973)2 C.L.R. 75 at pp. 78, 79, 80; Kannas alias Pombas v. The Police

(1968)2 C.L.R. 29 at pp.35, 36, 37, 38; Johnson v. Youden and Others [1950] 1 All E. R. 300 atp. 302; Director of Public Prosecutions for Northern Ireland v. Maxwell [1978] 3 All E. R. 1140 H. L.; Katsaronas and Others v. The Police

(1973)2 C.L.R. 17 at p. 35; Moon v. The Police

(1973)2 C.L.R. 99 at pp. 103-104; Christofides v. The Republic

(1970)2 C.L.R. 78; Reginalt Charles Edward Stiles-Altieri v. The Police

(1967)2 C.L.R. 140; Politis v. The Police

(1973)2 C.L.R. 211; Afxenti "Iroas" v.The Republic

(1966)2 C.L.R. 116 at p. 118; Chomatenos v. The Police

(1979)2 C.L.R. 119 at p. 124; Christodoulou alias Farfaros v. The Republic

(1963)2 C.L.R.36 at pp. 37-38; Terlas v. The Police

(1970)2 C.L.R. 30 at p. 34; Kakouris v. The Police

(1972)2 C.L.R. 42 at p. 44; Attorney-General of the Republic v. Mavrokefalos

(1966)2 C.L.R.93 at pp. 95-96; Attorney-General of the Republic v. Lazarides

(1967)2 C.L.R.210 at pp. 212, 213; Nicolaou v. The Police

(1969)2 C.L.R. 120 at pp. 122, 123; Coe, 53 Cr. App. R. 66 at p. 71; R. v. Robson and East

(1970)Crim. L. R. 354 at p. 355; R. v. Brown

(1975)Crim. L. R. 177. Appeals against conviction and sentence. Appeal against conviction and sentence by Andreas Azinas and another who were convicted on the 9th April, 1981, at the District Court of Nicosia (Criminal Case No. 17841/80) as follows:- appellant 1on seven counts and appellant 2 on six counts of the offences of (

1. a)stealing by agent contrary to sections 255 and 270(
2. b)of the Criminal Code Cap. 154 (
3. b)breach of trust affecting the public contrary to section 133 of the Criminal Code Cap.154 and (
4. c)abuse of office contrary to section 105 10of the Criminal Code Cap. 154 and were sentenced by Nikitas, S. D. J. to concurrent sentences of imprisonment ranging from six to eighteen months and six to twelve months, respectively. L. N. Clerides with A. Triantafyllides, for appellant 1. E. Efstathiou with St. Charalambous, for appellant 2. Evangelou, Senior Counsel of the Republic, for the respondents. HADJIANASTASSIOU J. read the following judgment of the Court. In the present appeals, the first appellant was found guilty by a Judge of the District Court of Nicosia, and was sentenced to imprisonment in all for 18 months on the following counts:- (
5. a)6 counts which refer to stealing by an agent contrary to ss. 255 and 270(
6. b)of the Criminal Code Cap 154; (
7. b)6 counts which refer to breach of trust affecting the public contrary to s. 133 of the Criminal Code, Cap. 154; and (
8. c)6 counts which refer to abuse of office contrary to s. 105 of the Criminal Code, Cap. 154. For all these counts, the second appellant was found guilty of aiding and abetting the first appellant in committing the offences referred to earlier contrary to s. 20 of the Criminal Code Cap. 154, and was sentenced to concurrent terms of imprisonment for a period of 12 months. In addition, the first appellant was found guilty on three more counts, viz., counts 19, 20 and 21, which relate again to stealing, breach of trust, and abuse of office. The first appellant was originally facing 18 counts, but three new counts were added in the course of the hearing. These offences can be divided into three categories: (
9. a)Stealing money by an agent contrary to sections 255, 270(
10. b)and 20 of the Criminal Code Cap 154. In this category fall the first six counts. In accordance with the particulars of these counts, the appellants fraudulently converted on various dates the total sum of £105, 894. 009 mils. As it appears; from the charges, that sum was entrusted to the first appellant by Co-operative Societies and other persons whilst he was the Commissioner for Co-operative Development in order to pay the said sums to displaced and unemployed co-operative employees and the first appellant aided by the second appellant paid the said sums to third persons for purposes other than those of the Self-Assistance Fund. The names of those persons to whom the money was given, and the corresponding sums which they took are set out in six schedules attached to the counts under letters A to F. Furthermore, in accordance 15 with the particulars of the charges, the time of committing the offences and the stolen amount in money is as follows:- First count: Between 31.12.74 and 21.4.75-£70. Second count: Between 22.4.75 and 24.11.75-£ 9,595.510 Third count: Between 25.11.75 and 12.12.76-£ 5,622.775 Fourth count: Between 13.12.76 and 8.11.77-£25,055.620 Fifth count: Between 9.11.77 and 18 .9.78-£43,081.184 Sixth count: Between 19.9.78 and 3.1.79-£22,468.920 It should be observed that originally the said sum in the sixth count was £85,446.735 mils but the trial Court amended on its own this count on the 24th January, 1981, and reduced the said sum to £22,468.920 mils, and amended the period the offence was committed as being the 3rd January, 1979, instead of the 8th November, 1979. (
11. b)Abuse of office by a public servant contrary to sections 105 and 20 of the Criminal Code which is the subject of counts 7-12. As it appears from the particulars of the charges, and the evidence, it was the same set of facts on which the first six counts were based which constituted these offences also. (
12. c)Abuse of trust from a public servant contrary to the provisions of sections 133 and 20 of the Criminal Code which is the subject of counts 13-18. It should be added that the prosecution bases its case on the same facts on which it relies in relation to counts 1-12. The second appellant was charged with aiding and abetting under section 20 the first appellant. The amendments made by the trial Court with regard to count 6 do not affect the sum, the subject of counts 12 and 18, which remains the same, viz., £85,446.735. Thesum which appears in the counts for abuse of power and abuse of trust is £168,871.824 mils. Counts 19-21 are against the first appellant only and fall within the first, second and third group of charges respectively. They concern a sum of £24,500.000, entrusted to him by the Co-operative Society Comarine Ltd. THE FACTS: The first appellant was appointed by the then Greek Communal Chamber as Registrar of the Co-operative Societies on 1st December, 1960. Later on when the said Greek Communal Chamber was dissolved by the provisions of Law 12/65, all services have ceased to exist as from 31st January 1965, and all posts held by all the employees were considered as being vacant. Indeed, in accordance with s. 16

(1)of Law 12/65, every employee who was in the service of the Greek Communal Chamber came under the jurisdiction of the Republic, and was entitled once it was practicably possible, to be emplaced to the same post which he was holding earlier. In effect, as from that date, all persons employed were reinstated and became public servants in accordance with the provisions of s. 16 of Law 12/65. In the meantime, the first appellant had addressed a letter to the Public Service Commission dated 6th October, 1967, seeking a re-appointment and an emplacement to the previous post he held. (See exh. 1). On 15th May, 1967, on behalf of the Director-General of the Ministry of Commerce and Industry, a letter was addressed to the Greek Commissioner of Co-operative Societies, informing him that the matter of his salary would be settled by the Public Service Commission when he would be posted to the appropriate post, in accordance with the provisions of s. 16

(1)of Law 12/

1. On 6th October, 1967, the first appellant addressed a letter to the Chairman of the Public Service Commission, and having referred to the provisions of Law 12/65, he invited the Commission to emplace him to the post he held earlier in the Communal Chamber before its dissolution on the 1st April,
2. This letter was signed by Mr. A. Azinas in his capacity as Commissioner for Co-operative Development and Registrar of Cooperative Societies. On 21st December, 1967, a letter was addressed to the Chairman of the Public Service Commission on behalf of the said Director-General, and after referring to the decision under No. 7319 of the Council of Ministers, dated 14th December,1967, regarding the approval of the scheme of service for the post of Commissioner of Co-operative Development and of the General Secretary in the Department of Co-operative Development, invited the said Commission to proceed to emplace Mr. A. Azinas to analogous posts in accordance with s. 16

(1)of Law 12/65. The author of this letter pointed out that Mr. Azinas had been carrying out the duties of the Commissioner for Co-operative Development as from 1st December, 1960. (See exh. 2). On 28th December, 1967, the Public Service Commission addressed a letter to Mr. Azinas through the Director-General of the Ministry of Commerce and Industry, and informed him that the Commission decided in accordance with s. 16 of Law 12/65 to emplace him to the post of Commissioner of Cooperative Development in the Department of Co-operative Development on a permanent basis as from 15th December, 1967. (See exh. 3). It appears that according to the schemes of service, the; post of the Commissioner of Co-operative Development is a first entry and promotion post. The duties and responsibilities of the post in question are as follows:- Management of the Department of Co-operative Development and responsibility for the promotion, development and orderly operation of the co-operative movement in the island.Exercise of the power and duties provided by the relevant laws and regulations.Advisor to the Minister on co-operative matters.Represents the Co-operative Department in various committees and bodies.Performance of any other duties which may be assigned to him. Required qualifications: (

1. a)For first appointment: university diploma or degree in economics, commercial or other appropriate sciences. Very good knowledge of the co-operativism and of the co-operative movement of the island.Knowledge of economic and financial matters of the island. (
2. b)For promotion: Higher education, preferably university diploma or degree in economics, commercial or other sciences. Very good knowledge of the co-operative theory and practice and the co-operative and other related legislation.Knowledge of economic and financial matters of the island.Long and very good service in the department of co-operative development. (
3. c)For both instances (
4. a)and (b): Excellent knowledge of the Greek and very good knowledge of the English language. Administrative and organizing ability, judgment, initiative, impartiality, fairness and integrity of character, ability to establish and maintain harmonious relations with the officials and members of the co-operative movement of the Republic. It appears further that the post in question was approved by the Council of Ministers by its decision under No. 7319 dated 14th December, 1967. Whilst at this point, it may be noted that with the accession to independence, the Co-operative movement in Cyprus saw a marked progress. It embraced every scheme of economic activity and its members increased considerably. Unfortunately, the steady progress that our island was experiencing was abruptly interrupted by the coup d'etat, organized by the Greek junta, and by the Turkish invasion which followed it, as a result of which 200,000 people were displaced from their homes in the occupied north part of the island and became homeless in their own country, and as a result, their Co-operative Societies were disrupted and their employees remained without employment. Indeed, as a result of the coup d'etat, the President of the Republic, Archbishop Makarios, was forced to leave the island, and the first appellant joined him in London. Later on the first appellant returned to Cyprus, and having seen the plight in which the displaced employees of the Co-operative movement found themselves, he decided to convene a meeting with a view to finding ways and means to assist them. On 22nd December, 1974, at a meeting convened by the first appellant at the Mimoza cinema, a great number of displaced co-operative employees and others attended, with a view to finding ways and means to improve the position of those unemployed displaced persons. The meeting was presided by the first appellant, and after they elected a committee of 5, and explained the purpose of such meeting, it was then decided to set up a fund for the rehabilitation of the displaced cooperative employees by granting to them financial help. With that in mind, and fully aware of the urgency of the matter, the first appellant, on 30th December, 1974, called Mr. GlafkosPetrides, P. W. 17, the assistant Manager of the Central Co-operative Bank which is also a Co-operative society, as well as the rest of its Committee members to his office. Indeed, according to the evidence of Mr. Petrides, the appellant gave them instructions to make a plea to all Co-operative employees, as well as to Co-operative Societies to contribute to a fund which would be utilized for the displaced employees who lost their jobs. In addition, Mr. Petrides told the Court that the first appellant gave to them a circular which would be circulated the next day, on 31st December, 1974, to the various Co-operative Societies and which in effect was referring to the purposes which they had discussed earlier at the meeting. (See circular 191). No doubt the first fund created was the Co-operativists Self Assistance Fund. Questioned further, Mr. Petrides added that the circular which has been handed to them was signed by the first appellant, and having explained to them the contents of the circular, he informed them also that in the meantime, and because it was Christmas, he had used a certain amount from the Inspection and Supervision Fund. He further added that the first appellant informed them that the total amount which was used for that purpose viz., for the payment to unemployed co-operative employees and those in need of funds was the sum of £20,000, and he had asked them, in their capacity as members of the committee to approve a temporary credit accommodation. He further told them that he would put before them a list of the cheques issued as well as the names of those to whom the cheques were issued from the said fund. The witness added that the Commissioner went on to say that after his plea and after sending that circular, he expected that money would be coming in. (See circular exh. 191 signed by him). Questioned further as to what actually was said by the first appellant at that meeting, and not his own conclusions, he emphatically said "that was exactly what was said, it was not my own conclusion". Furthermore, the witness stated that after the circular was sent to the various Co-operative societies, it was published also in the press, and in the light of the reasons given at the meeting by the first appellant, the Committee agreed to approve the amount of £20,000 used by the first appellant. It appears further that during that meeting, minutes were kept and were produced at the trial as exhibit 214. The witness conceded that he prepared the minutes himself, he signed them and had also decided that the said minutes should also bear the signatures of Messrs. Th. Malekides as Chairman, EliaLoizou, LoizosHjiLoizou and PanayiotiKarayianni who in the meantime died, i.e. the President and the three members of the Committee. Furthermore, Messrs. G. Demetriou, the 5th member of the Committee, the Chairman and RenosClerides the Manager of the Bank, had signed them and added that they had taken note of the minutes prepared. When the meeting was over, he went to his office and within a few days after the first of the year he proceeded to put into effect the decision of the committee and gave written instructions to Mr. Andreas Ioannides (P. W. 6), who was in charge of the sub-branch as to how he would act in order to put the said decision into effect. (See exhibit 188). The witness also said that it was his signature on that document and added that a copy of that letter was circulated to the general accountant and the heads of the other branches. Regarding exhibit 185, he said that this was sent from the office of the Commissioner of Co-operative Development and in that list there appeared the cheques which have been issued from the Inspection and Supervision Fund in favour of the distressed Co-operative employees, about whom the Commissioner of Co-operative Development had spoken to him in his office on the 31st December, 1974. Then he went on to add that in his letter he enclosed also that list (see exhibits 192-196). Questioned further he said those exhibits were the circulars which have been issued from the Commissioner for Co-operative Development which had been sent to all the committees of Co-operative Societies and were signed by the first appellant as the Commissioner for Co-operative Development. The witness said also that he had occasion to see exhibits 5-170, the cheques which have been signed by the first appellant. The witness added that towards the end of September, 1977, he saw again the first appellant with regard to the opening of a new account sometime at the end of October, 1977, when he called him to his office and informed him that he was going to create a fund which would be used by the Co-operative Societies. The reason he was called by the Commissioner was to ask him whether that fund could be kept separately and secretly in the Bank. In the Bank there was a secret ledger where there are certain details which are kept from the general directorate and from the general accountancy department. He then went on to add that when he said general accountancy department, it was to be understood that he was referring to the general accountant and his assistant. Indeed, he said this constitutes part of the whole system of a bank. He further explained that there was nothing illegal in that and the secret ledger was kept by him in the strong room and the only people who had access to it were the Secretary-Manager, the Assistant, and the General Accountant as well as his assistant who were making the entries in that ledger. Towards the end of November, the Commissioner handed to him a cheque which was issued by Comarine on 22nd November, 1977, for the benefit of the Commissioner for Cooperative Development Self-assistance Fund of Co-operative Societies and the Fund of Audit and Supervision for the sum of £100,000. (See exhibit 215). On 31st August, 1978, he was again given by Mr. Azinas another cheque issued by Comarine for the sum of £26,000 and both these two cheques were credited to the account to which he referred earlier. (See exhibit 216). That account, was duly certified, and was of 4 pages, and are true copies of the originals. (See exhibit 217). He issued a cheque book, and in accordance with his instructions, the general accountant issued the cheque book No. 169676-169700 which he delivered personally to Mr. Azinas. At that time, the Commissioner, Mr. Azinas, made it quite clear to him that the whole movement of the account and of the handling of it would be his own responsibility and only after it bears his own signature. The title of that account was Commissioner for Co-operative Development-Fund, and on those cheques it was written in Greek Δ.Σ.Α. General Accounts Department. He concluded that the measures which were taken by them were for the account to remain secret; and in all the sums of £216.000 were paid into that account. (See exhibit 217). Out of that fund, on 28th December, 1977, cheque 169676 was issued in favour of the Co-operative Credit Society of Trimiklini, for the sum of £21,000. (See exhibit 218). On 21st December, 1977, another cheque was issued under No. 169700 in favour of the Co-operative Grocery Kambou Ltd. for the sum of £2,000. (See exhibit 219). On 22nd December, 1977, there was another cheque under No. 169678 which was issued in favour of Σ.Ε.Γ.Ι.Δ.Ε.Π. of Pelendri and Kato Amiandos for the sum of £1,500. (See exhibit 220). All three cheques bear the signature of Mr.Azinas as Commissioner. On 22nd March, 1978, this secret account was debited with the sum of £70,000 because of a cheque which has been issued by Mr. Azinas in favour of the Audit and Supervision Fund. The balance of that account remained credited in the bank until March, 1980, but on 6th March, 1980, the Commissioner for Co-operative Development wrote to the Co-operative Central Bank and as a result this account was closed. (See exhibit 217). At the same time, he credited with the balance the Co-operative Society, Self-assistance Fund, which was £31,500. In addition, Mr. Azinas addressed a letter to the Central Co-operative Bank, dated 15th September, 1978, giving instructions to amalgamate the two accounts kept viz., Commissioner for Co-operative Development in memory of EthnarchMakarios, and Commissioner of Co-operative Development-Self-Assistance Fund of Co-operativists, into one account, under the name of Self-Assistance Fund. Dealing further with exhibit 200 A, the witness said that it was a letter dated 16th September, 1978, which he had addressed to persons in charge of the sub-branches of the Co-operative Central Bank Limited giving them instructions with regard to the amalgamation of the aforesaid accounts in accordance with the written instructions of Mr. Azinas. In addition he said a cheque was sent to him bearing the name of Commissioner of Co-operative Development-Self-Assistance fund. In fact, he added, a lot of cheques were used by Mr. Azinas and there was no complaint at all that the account was no opened properly. Speaking further about exhibits 207, 209 he explained that exhibit 207 is a letter written by Mr. Azinas in his capacity of Commissioner for Co-operative Development, to the Co-operative Central Bank on 30th November, 1979 in which he was giving written instructions to the effect that every balance (of the account) which was to be found in the account under the name Self-Assistance Fund, to be transferred to the Co-operative Society Self-Assistance Limited. At the same time he was seeking the closing of the account of the Self-Assistance Fund. That new account would be handled by the committee which was recently elected. Dealing further with exhibit 209 he explained that it was a letter from the Co-operative Society Self-Assistance Limited, dated 7th December, 1978, and was signed by Mr. P. Orphanos, the second appellant, the secretary of Co-operative Society Self-Assistance Limited. Having further stated that he knew the signature of Mr. Orphanos he added that when he had the latest developments of that account he addressed a comment to the secretary-manager of the bank whose name appeared in the application and as a result it was placed in advance before the convening of the committee of the bank on the 18th January, 1980, and the said committee had approved the loan to the Co-operative Society Self-Assistance Limited. Questioned further as to who had signed the letter exhibit 190 his reply was that it was Mr. Azinas who signed in his capacity as Commissioner for the Co-operative Development and related to the Co-operativists Self-Assistance Fund. Pausing here for a moment, this letter dated 14th January, 1975, (exhibit 190) under the heading Co-operativists Self-Assistance Fund reads:- "Παρακαλώ σημειώσατε ότι έχει αποφασισθή η ίδρυσις Ταμείου Αλληλοβοηθείας Συνεργατιστών προς παροχήν βοηθείας εις παθόντας Συνεργατιστάς εκ των τελευταίων τραγικών γεγονότων. 2. Ως η απόφαση της υμετέρας Επιτροπείας, παρακαλείσθε όπως:- (α) ανοίξετε σχετικών λογαριασμόν εις τον οποίον θα κατατίθενται όλαι αι εισφοραί από οιανδήποτε πηγήν διά τον άνω σκοπόν και από τον οποίον θα πληρώνωνται οι διάφοροι δικαιούχοι, (β) εμβάσετε εις το Ταμείον Εξελέγξεως και Επιθεωρήσεως το ποσόν των λιρών δεκαεπτά χιλιάδων πεντακοσίων δεκαεπτά μόνον (Αρ. £17,517.-) ως ο επισυνημμένος κατάλογος προς τακτοποίησιν του λογαριασμού μεταξύ των δύο ταμείων, (γ) με εφοδιάσετε με βιβλιάριον επιταγών διά των οποίων να διενεργώ τας μελλοντικάς πληρωμάς. 3. Την διαχείρησιν του Ταμείου θα ασκή προς τούτο εκλεγείσα Παγκύπριος Επιτροπή υπό την προεδρίαν μου. Δικαίωμα υπογραφής έχει ο Διοικητής Συνεργατικής Αναπτύξεως". And in English it reads: "Please note that the establishment of a Self-Assistance Fund for rendering help to co-operative employees who have suffered by the last tragic events has been decided. 2. According to the decision of our Committee, you are requested to: (
5. a)open a relative account in which all contributions from every source for the above purpose will be deposited and from which the various beneficiaries will be paid, (
6. b)put into the Audit and Supervision Fund the sum of seventeen thousand five hundred and seventeen pounds only (No. £17,517.-) as the attached list for settlement of the account between the two funds, (
7. c)provide me with a cheque book with which I shall effect the future payments. 3. The administration of the Fund will be effected by a Pancyprian committee elected for this purpose, presided over by me. The Commissioner of Co-operative Development has the right to sign". See also the evidence of P. W. 6, Andreas Ioannides, who was in charge in one of the branch of the Central Bank of Nicosia, at p. 91 on this issue. According to Mr. RenosClerides (P.W.8) whose position at the Co-operative Central Bank was that of a secretary-manager, the circular, exhibit 199 was addressed to all committees and to all secretaries of all the co-operative societies of Cyprus. He further added that it was signed by Mr. Azinas in his capacity as Commissioner for Co-operative Development and was bearing the title Contribution of Co-operative Societies in memory "of EthnarchMakarios. In that circular, exhibit 199, the Commissioner was appealing for funds in order to enable him to build a hospital for children. Because of that circular, he himself circulated an internal circular (exhibit 198), dated 29th August, 1977, to all heads of the sub-branches of the Cooperative Central Bank signed by him, and bearing the title "Contributions of Co-operative Societies in memory of EthnarchMakarios". When he was asked by counsel for the prosecution as to whether he knew that the hospital referred to earlier was finally built, counsel for the defence put forward the argument that such question was irrelevant because there was no charge against his client which related to the Fund of EthnarchMakarios. On the contrary, counsel for the prosecution argued that the question was admissible in evidence because an amount of about £28,000 was collected from funds. The trial Court, having overruled the objection, pointed out that once there was sufficient evidence regarding that matter, Mr. RenosClerides could reply, and he emphatically said that as far as he was aware, such hospital was not built. Dealing also with the minutes of the Committee of the Central Bank dated 17th October, 1979, at p. 2, he said that he was also present and had this to say regarding the third item on the agenda (exhibit 225): Account "Commissioner Co-operative Development-Self-Assistance Fund". The minutes read: The Commissioner informs the Committee that the said account for which A. I. A. is responsible personally and is using it, shows today a debit balance of £15,216.211 mils". Then the minutes go on: "The Committee approved the said overdraft, in spite of the fact that it was made contrary to the provisions of section 34

(1)of the Co-operative Societies Law Cap. 114 and because the said Fund does not constitute a legal person". Finally the minutes further read: "The General Manager is Authorized to ask from A. Z. A., Commissioner of Co-operative Development to pay off the said overdraft the sooner". (See exh. 226). This was indeed a stem warning by the Committee to Mr. Azinas and in the light of this decision Mr. RenosClerides who was at the meeting, as secretary-manager had no alternative and indeed addressed a letter to Mr. Azinas in his capacity as Commissioner of Co-operative Development, dated 18th October, 1979, and in Greek it reads: "Κύριε, Λογαριασμός: 'Διοικητής Συνεργατικής Αναπτύξεως- Ταμείον Αλληλοβοηθείας'. Παρατηρούμεν ότι ο ανωτέρω παρ' ημίν λογαριασμός δια τον οποίον είσθε προσωπικώς υπεύθυνος εφ' όσον το Ταμείον δεν αποτελεί νομικόν πρόσωπον, παρουσιάζει σήμερον χρεωστικόν υπόλοιπον εκ £51,266.811 μιλς (Λίρας Πεντήκοντα Μίαν Χιλιάδας Διακοσίας Εξήκοντα εξ και 811 Μιλς). Το παρατράβηγμα τούτο γενόμενον κατά παράβασιν του άρθρου 34

(1)του περί Συνεργατικών Εταιρειών Νόμου συνιστά παράνομον χορηγίαν δανείου υπό της ημετέρας Τραπέζης ως εκ τούτου δε δέον όπως εξοφληθή το συντομώτερον". And in English it reads: "Sir, Account: 'Commissioner Co-operative Development-Self-Assistance Fund". We have noted that the above mentioned account for which you are personally responsible once the Fund does not constitute a legal person, shows today a debit balance of £51,266.811 mils. The overdraft which has been made contrary to section 34

(1)of the Co-operative Societies Law constitutes an illegal act of the loan by our bank and therefore it should be paid off the sooner" In spite of the fact that there was no reply by the Commissioner, on 18th January, 1980, the Committee of the Co-operative Central Bank at its meeting had approved a limited credit to the Co-operative Society of Self-Assistance Limited. Present were Mr. Th. Malekides, the Chairman of the Committee, H. Loizides, a member, L. Hadjiloizou a member, G. Demetriou a member, and C. Marangos a member. Present were again both Mr. RenosClerides and Mr. GlafkosPetrides. In exhibit 227 on the second page, it appears that the amount which was approved was £80, 000 to the Co-operative Society, Self-Assistance Limited. Furthermore, on the third page of the same exhibit, we have this warning:- "It is decided furthermore that all the above companies be notified that in no event the withdrawal of any sum in excess of their above approved credit limit will any more be permitted and that in case of non-compliance by them with the above conditions, the cheques issued by them will be returned. Moreover, the debited interest for 1979 or other interest for previous years already debited must be paid off within a reasonable time, this being defined after an agreement with the debtors. Likewise, the debtor companies should arrange that the interest for the current year be paid off toward s the end of 1980 as there will be no case of increasing their credit limits because of the debit of these interests. With regard, to the limits granted as above to SOGEA Ltd. and the Co-operative Society for Self-Assistance Ltd., it is clarified that they will be used exclusively for paying off amounts equal to overdrafts of the accounts of 'SOGEA' (to be established); and 'C.C.D. Self-Assistance Fund' respectively. These limits will be for an indefinite duration of time". There was further questioning by counsel and Mr. Clerides said that he knew the signature of the first appellant and he had seen his signature on many occasions and when he was signing letters and other material. But with regard to exhibits 197, 201-205 he said that it was a list containing contributions and there was a covering note which there is in each of the exhibits and it bears the signature of the responsible officers of the said bank. He then added that in addition it was signed by him personally and by the three members of the governing Committee. There was further evidence and indeed we do not think it is necessary to deal with all prosecution witnesses, but according also to P.W. 10 NicosGregoriades, the secretary of the Cooperative Credit Society of Strovolos he said that towards the end of 1974 and the end of 1976, he had received circulars from the Commissioner of Co-operative Development (see exhibits 191-194) inviting them to make contributions to the Co-operativists and to the Self-assistance Fund. He convened a meeting of the Committee, and on 3rd February, 1975, the Committee is recorded as saying this: "In response to a circular of the Commissioner of Co-operative Development, the Committee has decided to contribute the sum of £1,000.-in aid of the Self-Assistance Fund for Co-operative employees". The next day he addressed a letter to the Commissioner of Co-operative Development dated 4th February, 1975, for the approval of that sum and when he received a reply on 8th February, 1975, that the sum was approved, he deposited it to the Co-operativists Self-Assistance Fund. Furthermore, the witness added that always acting on the basis of the circular, he submitted to the Committee of the Co-operative to approve a further amount of £500 for the fund in question. Indeed, he said that he had addressed a letter on 28th February, 1975, to the Commissioner and received a reply on 8th July, 1975, approving that amount. The second decision reached by the Committee reads as follows:- "It is decided that we should contribute the sum of £500-a second instalment, for the reinforcement of the Fund for Displaced Co-operative employees". Questioned further on which circular they acted and from whom, his reply was from the office of Co-operative Development. In cross-examination the witness said that he received only two circulars and not six. He further added that in any event he had seen only two. As we said earlier in the light of the statements of a number of witnesses when they were receiving circulars addressed to them by the first appellant they have done their very best to help as much as possible in order to alleviate the suffering of their colleagues, but since all counsel appearing in the present case have attached quite rightly, a lot of importance to these circulars, we propose reading right away the first one which was sent to all co-operative societies. The circular in question, under the heading "13th salary 1976", says: "The conditions prevailing in our island are known to everybody. It is known to everybody that hundreds of co-operative societies have suffered irreparable damages. It must be a common secret to all of us that hundreds of our colleagues remain unemployed, homeless and away from their houses. In spite of all this, we cannot deprive anybody of the 13th salary which is paid in order to cover the increased family expenses during these festive days. The duty towards our colleagues who remained without any income is imperative. For these reasons, I invite today your feelings for colleague solidarity. As it has been written in the press, a Self-Assistance Fund for cooperative employees has been established in order to meet the various needs of our colleagues. This fund will be aided by all co-operative societies but in any way by the employed and paid co-operative employees also. It is approved, therefore, that the 13th salary be paid to all co-operative employees for the year 1974, provided that 25% of the payable sum will be withheld for the benefit of the Self-Assistance Fund for Co-operative employees. From the 13th salary will be cut also the amount specified by Law 54/74 for the Relief Fund for Displaced and Stricken Persons. The 25% withheld from the whole of the 13th salary will be deposited with the Central Co-operative Bank to the credit of the Self-Assistance Fund for cooperative employees and will be used for the purpose of assisting our unemployed colleagues. At the same time I appeal to the Committees of all the co-operative societies to approve a good amount on behalf of the society which they direct for the benefit of the Self-Assistance Fund for Co-operative employees. The decisions of the committees shall be submitted for approval as always. I hope and believe that both the co-operative employees as well as the committees of the Co-operative establishments will show by acts also, their love and solidarity for colleagues which are imposed by the difficult moments we are facing in order to prove to the public of Cyprus that the slogan 'EACH FOR ALL AND ALL FOR EACH ONE' continues to exist and apply in our country." In another circular (exhibit 196), the first appellant once again praised the work of everybody and had this to say:- "Created for Self-Assistance Fund through which it tried with understanding and affection to heal the wounds of all colleagues Co-operative employees of the displaced Co-operative Societies. It took and takes care for the Co-operative Societies. It took and takes care for the equipment of the Sanitary Services of the State with the appropriate instruments for the fight against anemia, takes care of the Institutions for mentally retarded children, it brought doctors from abroad and took care of sick people to go abroad for treatment etc. You are therefore invited, colleagues, as soon as you get this circular, to meet and decide the amount of the contribution which you have to deposit in the same way as last year, through the Co-operative Central Bank for the benefit of the Self-Assistance Fund. Your contribution must be generous because as it has been stressed before, Attila has bequeathed to us numerous and serious wounds". It appears that from the trend of all the circulars in question the first appellant has never informed the persons or Societies who were contributing to the Fund that the purpose of the Fund had changed, but continued to state in the circulars that the main purpose of the fund was for the displaced unemployed cooperative employees in order to continue collecting large sums for his various funds. FACTS REGARDING APPELLANT 2: The second appellant, Panayiotis Orphanos, in November, 1957, was granted a scholarship from the Archbishopric in order to study agriculture in the Aristotelion University of Thessaloniki. In 1961, and before he succeeded in getting his diploma, he was elected unanimously as general secretary of PEK, (The Pancyprian Farmers Union), a post which he held until August,

1. He obtained, however, his diploma in November,
2. Finally, he was appointed, on 1st November, 1966, to serve with the Co-operative Societies in charge of Co-operative enlightenment and propaganda. According to the terms of the letter addressed to him by the Greek Registrar of Co-operative Societies, his appointment was on a temporary basis and his salary was £642 reaching the sum of £900 and in addition he was receiving a monthly cost of living allowance. In this letter, it was made clear to him that he was not a civil servant and his duties as we said earlier, were the enlightenment and propaganda, as well as any other duties which would have been assigned to him. In addition, it was made amply clear under the heading "duties" of the post in question, that he would be directly responsible to the Registrar, the first appellant. His salary was coming from the Inspection and Supervision Fund. This Fund, he said, was in the hands of the Commissioner of Cooperative Development. On being asked by his counsel appearing before the trial Court whether he had any right to refuse to obey any warrant or any instructions of the Commissioner of Co-operative Improvement, his answer was that according to his appointment-no. We think it is right to state that the contract of appointment of the second appellant to the post in question was rightly described by counsel appealing for him as harsh, because under the term "termination of appointment", we read:- "Your appointment can be terminated at any time without giving you any reason and once you will be given by me one month's written notice or instead of giving notice to be paid to you a salary and cost of living of one month". He could, however, terminate his appointment himself, after giving to the Registrar one month's written notice. The second appellant accepted the post in question, expressing his thanks to the first appellant, on 29th October, 1966 (see exhibit 261). On 18th February, 1975, he was appointed by the Co-operative Development as Director of College (temporary) with a salary scale of £2004 X £96-£2100X£120-£
3. His salary at the time was £2,460 p. a. plus authorized increment of £120, and in all he was earning £2,580 as from 1st January,
4. (See exhibit 262). In the meantime, in 1973, he visited various countries in order to study the system used by the co-operative colleges which have been functioning in Greece, Great Britain, Germany, Israel and Sweden. Furthermore, he was in touch with international co operative alliance and with the international labour office with the view of creating in Cyprus a co-operative cultural centre which could be used not only for the needs of the cooperative movement of Cyprus, but also for the needs of cooperative movements of the Middle East countries. In praising the success of the college, the second appellant said that in the domain of education and enlightenment the college was a success. Furthermore, he said a number of professors visited our country with a view of following what was going on in the college, and who expressed the wish of starting a closer co-operation with our country. Indeed, he added, the college became known to a lot of people abroad. In the college he was employing nine persons and there was also another economist who was teaching economics and dealing with the subjects of management and marketing. In addition there were another two economists who are statisticians and their work was the collection of various materials from all co-operative societies of Cyprus; and that the collection of that material finally would be studied by the department of co-operative development. There were three other female employees working as clerks, typists and telephone operators. Questioned further as to what were actually his duties in the college, he said that he was in charge of the functioning of the college. He was organizing cycles of lessons regarding the principles of the co-operative movement, and lecturing on co-operativism. Speaking as to the Self-Assistance Fund and as to what was the procedure in completing and delivering the cheques to those who were entitled, he said that since Christmas of 1974, they had instructions that the college would be dealing and also handling the delivery of those cheques. They were also keeping a list (exhibit 189), which was prepared by the department of Co-operative Development. Because they carried out their work regarding the distribution of the cheques, they were again instructed to deliver the cheques from the Self-Assistance Fund for the Easter of
5. Indeed, he added, after an announcement in the press, to the effect that the cheques were to be distributed from the College, the displaced persons entitled were calling to collect their cheques from the college. The personnel of the College were again used for the next years of Christmas and Easter. Indeed, he said, there was a further announcement on the same subject both in the press and on the radio calling on those who were entitled to the cheques to pass from the college and receive their cheques. (See exhibits 171, 182 and 189). He further stated that for the Easter of 1975, the list of 1974 was used as a basis for those who were entitled for the year
6. This list was prepared by the typist. He repeated that the whole list of names who were entitled to receive funds was prepared by the employees of the college and had nothing to do with the list or with the sums paid, and/or the persons who would have been receiving help from the Self-Assistance Fund. He admitted however, that when instructions were given by the first appellant, the names of those persons were put on the list. (See exhibits 311-314, which show that those names were added on the list). Questioned as to whether he had a right to decide as to who would be added on the list, or whether he could erase names from the list and not to give them assistance, the reply was "No". In principle, he said, it should have been checked with the personnel of the Department of Co-operative Development, as to whether the person which would be added on the list was an employee or holding a higher post. He further said that he had no files in the college regarding these matters, viz., as to whether someone was an employee or not. In the college, he added, the work of preparing the lists and/or other material was of a mechanical nature as regards the previous list and was preparing also the new one with the additions and/ or erasures and were signed by the Department of Co-operative Development; and distributed the cheques Only when they were approved and signed in the meantime. Speaking further on the same subject, he repeated again that the cheque books from which the cheques were issued were distributed in accordance with instructions. The procedure which was followed for granting funds to other persons apart from the persons whose names were on the list, was the following:- Someone was telephoning from the office of the first appellant, sometimes himself or his private secretary, and they were asking for the cheque books to be sent to them. There was a further procedure, he added, that any time he visited the office of the first appellant he used to take those cheque books and they were working together for the completion of those cheques. Sometimes again telephone calls were received from his office and they were given instructions for the addition on the list of a particular name. Turning to the question as to whether at any stage he had knowledge of the circulars prepared by the first appellant, regarding exhibits 191-196, he emphatically said that he had never received either personally or in his capacity of being in charge of the college such circulars. He further stated that the first time he saw those circulars was when the trial of this case started. Dealing also with the question of certain cheques which have been issued in his name, he explained that those cheques appearing in supplement B, and particularly exhibit 7, was for £33.040 mils and was issued in his name for the expenses he had made for two meals in entertaining Mr. Chronopoullos, the Chairman of the Π.Α.Σ.Ε.Γ.Ε.Σ. of Greece, who was invited and attended the conference of the refugees agriculturalists. Having given details regarding the money spent, and the reason why certain cheques were issued in his name personally, he explained that in some cases some persons did not want to insert their names on the cheque for various reasons. He admitted that he paid in cash to PEK of Paphos £700 and to PEK of Limassol another £
7. The reason for this, he explained was because it was the wish of the persons who received the money not to be known publicly. Speaking about his journeys abroad and in attending various conferences, he explained that the decision to go abroad was taken by the Commissioner. He also added that he had supported before international forums our stand for the withdrawal of the foreign troops from Cyprus, and the right to every Cypriot to return to his home. There is no doubt, and it has not been challenged, that his journeys to the various meetings were approved by the Commissioner, and it was also part and parcel of their policy to co-operate with various agricultural organizations including PEK, EKA and a number of other organizations. Having given reasons for each item he had spent, and we need not proceed to deal with each and every one, we would reiterate that the whole stand of appellant 2 during the trial was that everything which he has done was done after he had the approval of the Commissioner and with regard to the payments made to P. E. K. and others, the reasons were to avoid publicity. However, as it appears from his own statement given to the police earlier, he contradicted himself because he admitted that he was not receiving orders from appellant 1 but it was simply a matter of co-operation. (See exhibit 280 at p. 5; see also the statement of the first appellant given to the Police). Indeed, the questioning and cross-examination of the second appellant has covered a great number of pages, and we do not propose adding anything else, except to repeat once again that from the whole questioning of counsel for appellant 2, it appears that his stand all along was that he had no personal gain from any of the funds which have been established and that he only did what he thought his duty to co-operate, and his duty to help his country by attending conferences abroad in order to contribute as much as he could in enlightening public opinion abroad about the Cyprus problem. On the contrary, counsel for the prosecution, in challenging him that he was aware of what was going on with regard to the various payments made, questioned him in these terms:- "Q. But you were issuing announcements as you have told us, every Christmas and Easter and such announcements have been produced as exhibits 306-310 and you said who were the persons responsible and would be coming to take their cheques. A. In my opinion the announcements say what they are and those which refer in the announcements and they were calling them to come and take their cheques from the Self-Assistance Co-operativists Fund. Q. But you have not replied clearly whether you knew the purposes of the Self-Assistance Co-operativists Fund. You told us of principles for a section of the Law, but you did not tell us who were entitled and by whom this fund was created. A. If you mean the purposes which refer in the charge against me I did not know them". STATEMENT OF APPELLANT 1 TO THE POLICE: Before dealing with the substance of the statement of appellant 1 to the police, it appears that on that date the police informed the first appellant that they were carrying out enquiries with regard to offences, which according to the material which they had in their hands, he (Azinas) had committed, in his capacity as the Commissioner of Co-operative Development, and as Registrar of Co-operative societies. Then, having written down the various charges, A, B, C, D, E, F, the police proceeded to inform him that for the said charges he was proposing to interrogate him and obtain a statement from him. The police further warned him that he was not bound to say anything unless he wanted to do so, but whatever he would say may be taken down in writing and be adduced in evidence. According to the statement, the first question was in these terms:- "There is an allegation that between the 13th January, 1979 until 29th February, 1980, you have illegally incurred a loan from a current account under the name 'Commissioner of Co-operative Development-Self-Assistance Fund', and on the 29th February, 1980, the said loan reached the sum of £
9. What do you have to say with regard to that allegation?" Then, under the heading "Reply", the first appellant gave this statement:- "In December of 1974, we have returned from England together with the President of the Republic, Archbishop Makarios. More than 900 co-operative employees remained unemployed and without an income. With the approval of His Beatitude, and before Christmas of 1974, I have urgently adopted a suggestion of the committee of displaced co-operative employees for collecting money which would be used for the payment of part of the salary to those employees who became refugees and were not emplaced in their jobs. That unofficial collection of money had the stamp of being temporary, because then every one of us believed that the return of the displaced persons to their homes was a question of weeks, and it developed into the creation of a Self-Assistance Fund, and today has developed into a Co-operative Society, Self-Assistance Ltd. This fund has started with a debit account at the Central Co-operative Bank for about £20, 000 in order to pay the refugees during Christmas of
10. Those three forms of Funds, Self-Assistance, was handled by the committee of the displaced co-operative employees and the Pancyprian Co-operative Federation. For the purpose of the success of the fund, I accepted to sign the cheques issued and these circulars for collection of money. In accordance with the law, the Co-operative Society Self-Assistance, was registered and has undertaken all the financial obligations of the Self-Assistance Fund. The Self-Assistance Fund, until 1978, had a credit balance in the Central Co-operative Bank. As I am informed, after 1978 the Co-operative Central Bank allowed an overdraft. No-one had asked to approve the borrowing of money from that fund in accordance with my powers. It is well-known that the Commissioner of the Co-operative Bank has the power to approve a decision of any co-operative society to lend money to a legal body, co-operative or not, in accordance with the regulations of the said Co-operative Bank. I ant to make this clear: One co-operative society can approve a loan to a non-member as long as it secures by an obligation the permission of the Commissioner of Co-operative Development. The applicant may be an individual, or a co-operative society or any other type of a legal person. According to my own interpretation, if the committee of the Central Bank was examining my application for borrowing such a loan, and I had approved of that decision of the committee of the bank, then legally a loan would be granted to me. I refer you to s. 34 of Co-operative Societies Law, Cap. 114 and Law 28 of
11. For the handling of that fund, the accounts and its handling, Mr. Orphanos, the Secretary of the Co-operative Self-Assistance Fund will be in a position to inform you". It should be added that Mr. Orphanos was also present during the questioning of the first appellant. On the 31st May, 1980, the second appellant gave a voluntary statement to the police and had this to say- "I am the Director of the Co-operative college and Secretary of the Pancyprian Co-operative Federation and at the same time I am secretary of the Pancyprian Co-operative Company of Self-Assistance since the 1st November,
12. The Co-operative company of Self-Assistance constitutes the official expression of the unofficial Self-Assistance Fund of co-operative employees and of the Self-Assistance Fund. The Self-Assistance Fund of Co-operative employees was founded in December, 1974 after the return of the Commissioner of Co-operative Development, Mr. Azinas, from abroad with the late Archbishop Makatios. As soon as Mr. Azinas returned, he was confronted with a claim from the displaced co-operative employees for assistance to all that had not the opportunity of employment. As the Christmas holidays were approaching and the time was limited, it was decided to set up an account with the Co-operative Central Bank from which grants would be given to all co-operative employees who were in need of assistance and to which all the co-operative societies of Cyprus would contribute. At the beginning when it was opened, it was a debit account and an amount of about £20,000 was used. This account was named "Self-Assistance Fund of Co-operative Employees" c/o Commissioner of Co-operative Development, as a Co-operative Society. In order to lend to a non-member, it needs the approval of the C.C.D. This account was managed by the staff of the co-operative college in co-operation with the committee of displaced co-operative employees and the Pancyprian Co-operative. Federation, the cheques for the sake of convenience, were signed always by the C.C.D. until the establishment of the Co-operative Society of Self-Assistance. The amounts that were given from this fund were given in co-operation and with the knowledge of the C.C.D. The Self-Assistance of Cooperative Employees was changed later on, I think in the year 1977, to Self-Assistance Fund with wider aims and in order to cover grants to other purposes of public benefit. This had the name A. E. A., Self-Assistance Fund. The account of this fund was a credit one until the beginning of
13. The grants which were given for purposes of public benefit to hospitals, churches, organizations, clubs and others were almost always in cheques except isolated instances where there were technical difficulties and they were given in cash with the relevant evidential factors. With regard to the accounts of this fund, the only books which were kept were files with the evidential material, as all the collections of contributions and remittances were made through the Co-operative Central Bank and appeared on the statements of account. All the grants were given either to displaced co-operative employees or co-operativists who were in need of assistance or medical treatment and for public benefit purposes which were mentioned earlier and no amount was given to individuals but all the amounts which were given were intended for some general purpose. On the 1st November, 1977, the Co-operative Society of Self-Assistance was established, a committee was elected consisting of Mr. GeorghiosDemetriou as Chairman, TheodosisMalekides, KyriakosLouca, Angelis Charalambous and Andreas Charalambous as members, who appointed me as Secretary of the society. The Co-operative Society of Self-Assistance, by decision of its committee, took over the balance of the account of self-assistance with the Central Co-operative Bank. The account today of the Society of Self-Assistance with the C.C.B. is a credit one, and reaches the level of about £30,
14. From the date that the Co-operative Society of Self-Assistance took over the account of the fund of self-assistance, which was round £75, 000 in the debit, the C.C.D. has no interference except those which on the basis of the existing legislation, the C.C.D. has with other co-operative societies, and the account is administered by the committee and the secretary. The objects of the society continue to remain the same as before. All the cashed cheques of the fund of self-assistance which were kept originally with the C.C.B. were taken by the auditors of the department of Cooperative Development who audited the fund at the beginning of the year 1978 and the beginning of
15. These cheques, as well as other evidential matters were placed from the beginning of March, 1980, by me at the disposal of the President of the Republic who gave instructions to the Minister of Finance who checked them in my presence and in the presence of the C.C.D. on the 29th March,
16. The cheques and the evidential material remained in the hands of the auditors and were delivered today to the police. The Δ.Σ.Α. Self-Assistance Fund, was administered by the same persons who administered the Fund of Self-Assistance of Co-Operative Employees. When I say that the staff of the co-operative college took part in the administration of the self-assistance fund, I mean on principle, the clerks, typists in whose possession there were found the cheque books and who filled them in, and myself as the Director of the Co-operative College where many addressed themselves for assistance from the fund. Depending on the instance and the amount which was asked for, there was a proportionate co-operation with the Pancyprian Co-operative Federation, the committee of displaced co-operative employees, and the C.C.D. When the account of the self-assistance fund was in the debit, neither was asked for nor there existed any guarantee to the C.C.B. A guarantee was given when the Co-operative Society of Self-Assistance was founded". Finally, his statement was read to him, and having said that it was correct, he signed it. On 11th June, 1980, the second appellant was informed by the police that they were carrying out investigations with regard to some of the allegations made to them on various dates, and the questions and answers cover 20 handwritten pages. As we think that it is unnecessary to quote all these pages in the present judgment, we shall now proceed to deal with the grounds of appeal. GROUNDS OF APPEAL 1(a), (b) and (c): Mr. Clerides in support of ground 1(a) argued that the conviction of the first appellant was the result of a substantial miscarriage of Justice in as much as in deciding the submission of counsel for the appellant that the prosecution did not prove a prima facie case against the appellant, the trial Judge, by its ruling of the 24th January, 1981, decided certain matters affecting the guilt or innocence of the appellant finally and before having heard the evidence of the appellant and his witnesses contrary to the accepted principle of law that the final pronouncement of the guilt or innocence of an accused person should be pronounced only after hearing the whole of the case including the appellant's version. After the closing of the case for the prosecution, counsel for the defence submitted under section 74

(1)(

1. b)of the Criminal Procedure Law, Cap. 155, that no prima facie case had been proved against the accused sufficiently to require them to make their defence, and invited the trial Judge to acquit them at that stage. The ruling of the trial Judge with regard to this submission clearly shows how the whole matter had been approached. Indeed, he took into consideration the criteria on which he had relied in order to decide whether a prima facie case has been proved. With respect to counsel, the mere fact that the trial Judge decided in its ruling the relevant elements of the offences which the appellants were facing does not, in our view, mean that the Judge decided their guilt before hearing them, on the contrary, in our view, it has helped the defence by pointing out in its ruling what the legal aspect of the case was. Indeed, in going through this ruling, we have noticed that he never dealt with the evidence adduced, and indeed, he never decided the guilt of the appellants as the defence had argued on this ground. The Practice Note issued in 1962 by the Divisional Court of the Queen's Bench Division of the High Court of England by way of direction of justices designed to guide them in determining whether a prima facie case has been made out or not, reads as follows:- "Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, this Court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations. A submission that there is no case to answer may properly be made and upheld: (
2. a)when there has been no evidence to prove an essential element in the alleged offence; (
3. b)when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do
4. so)would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer". This Practice Note, though not binding on Cyprus Courts, forms in practice an important guide, and has rightly been followed by Courts here exercising criminal jurisdiction, because of the identity of our law on the subject, and as it incorporates the fundamental principles that a Court should have in mind in coming to a decision on the matter. In Wiseman and Another v. Borneman and Others, [1969] 3 All E. R. 275, Lord Reid, in dismissing the appeal had this to say with regard to the term "prima facie" at p. 277 "It is, I think, not entirely irrelevant to have in mind that it is very ususual for there to be a judicial determination of the question whether there is a prima facie case. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party". In Cyprus, reference on this point may be made to the case of Rex v. Mustafa Kara Mehmed, 16 C.L.R. 46, which, however, turned on the interpretation of the statutory provisions in force at the time, namely clauses 143 and 144 of the Cyprus Courts of Justice Order, 1927. In respect of this case, the following observation, with which we agree, is made in the textbook of Criminal Procedure in Cyprus by A. Loizou& G. Pikis, at p. Ill et seq. "The only decided case on the question of a prima facie case is that of R. v. Mustafa Kara Mehmed, 16 C.L.R. 46. But the decision given in that case is of no great assistance as it was primarily based on the interpretation of the provisions of clause 143 of the Courts of Justice Order, 1927, the wording of which is, at least in one material respect, different from that of s. 74

(1)(b). In accordance with clause 143, the Court was required to examine, at the close of the case for the prosecution, whether the evidence adduced was sufficient 'to support the conviction' whereas in accordance with the present Law, as earlier indicated, the Court is merely required to decide whether the accused should, in the light of the totality of the evidence, be required to make his defence. The present wording of the statute is more in line with the traditional concept of a prima facie case enunciated in a number of English cases, that is, the Court is required to decide whether there is enough to call for an answer. (Wiseman and Another v. Borneman and Others [1967] 3 All E. R. 1045 (see in particular, the judgment of Lord 25 Denning M. R.) Findings of fact at this intermediate stage of the trial are provisional as the Court must preserve an open mind to the very end of the proceedings (Cozens v. Brutus [1972] 2 All E. R. 1). A practical way to approach the question of whether a prima facie case has been made out is that suggested by the Court in Vye v. Vye [1969] 2 All E. R. 29 (a decision in the field of Matrimonial Law); see also Ellis v. Jones [1973] 2 All E. R. 893), where it was said:- 'We have heard enough of the case and we do not think anything of the case. This is a right proposition, provided it is coupled with the advice that it is usually better to wait and see both sides in matrimonial cases, before coming to a conclusion'. The present position is more in line, as opposed to the position adopted in the case of Kara Mehmed (supra) with Constitutional provisions laying down that nobody is guilty of an offence unless convicted by a Court of Law. (Article 12. 4 of the Constitution.)" In a very recent case, the Court of Appeal in England, in R. v. Galbraith, [1981] 2 All E. R. 1061 dealing with the question of how to approach a submission of no case to answer, had this to say under the heading "Two schools of thought": "The judge rejected a submission of no case at the close of the prosecution evidence and the principal ground of appeal was that he was wrong. Their Lordships had been told that some doubt existed as to the proper approach to be adopted by the judge at the close of the prosecution case on a submission of no case: Archbold Criminal Pleadings Evidence and Practice, 40th Ed.,

(1979)5th Cumulative Supplement, para, 575, and R. v. Tobin [1980] Crim. L. R. 731. There were two schools of thought:

(1)that the judge should stop the case if in his view it would be unsafe, alternatively, unsafe or unsatisfactory, for the jury to convict;

(2)that he should do so only if there was no evidence on which a jury properly directed could properly convict. In many cases the question was one of semantics and each test would produce the same result, but that was not necessarily so. A balance had to be struck between on the one hand a usurpation by the judge of the jury's function and on the other the danger of an unjust conviction. Before theCriminal Appeal Act, 1966, the second test was applied, but section 4

(1)(a) required the Court of Appeal to allow the appeal if they were of the opinion that the verdict should be set aside on the ground that 'under all the circumstances of the case it is unsafe orunsatisfactory'. Thereafter a practice grew up on inviting the judge at the close of the prosecution case to say that it would be unsafe, or, sometimes, unsafe or unsatisfactory, to convict on the prosecution evidence and on that ground to withdraw the case from the jury. It was doubtful whether the change in the Court of Appeal's powers could logically be said to justify a change in the basis of a no case submission. The fact that the Court of Appeal had power to quash a conviction on that ground was a slender basis for giving the trial judge a similar power at the close of the prosecution case. However, there was a more solid reason for doubting the wisdom of the test. If a judge was obliged to consider whether a conviction would be unsafe or unsatisfactory he could scarcely be blamed if he applied his view as to the weight to be given to the prosecution evidence and as to the truthfulness of the prosecution witnesses and so on. That was what Lord Widgery said was clearly not permissible in R. v. Barker (Note [1975] 65 Cr. App. R. 287): 'It is not the judge's job to weigh the evidence, decide who is telling the truth and stop the case merely because he thinks the witness is lying. To do that is to usurp the functions of the jury'... How then should the judge approach a submission of no case?

(1)If there was no evidence that the crime alleged had been committed by the defendant there was no difficulty-the judge would of course stop the case.

(2)The difficulty arose where there was some evidence but it was of a tenuous character, for example, because of inherent weakness or vagueness or because it was inconsistent with other evidence; (

1. a)where the judge concluded that the prosecution evidence, taken at its highest was such that a jury properly directed could not properly convict on it, it was his duty on a submission being made to stop the case; (
2. b)where, however, the prosecution evidence was such that its strength or weakness depended on the view to be taken of a witness's reliability or other matters which were generally speaking within the jury's province and where on one possible view of the facts there was evidence on which the jury could properly conclude that the defendant was guilty, then the judge should allow the matter to be tried by the jury. It followed that the second school of thought was to be preferred. There would be borderline cases. They could safely be left to the judge's discretion. In the present case the circumstances were such that it was a case where the jury should decide the weight of the evidence on which the prosecution based its case. There was no substance in any other ground of appeal. The application was refused". There is no doubt that the trial Judge in our case from the material before him, rightly reached the conclusion that the prosecution had made out a prima facie case, and correctly, in our view, rejected the submission of counsel for both appellants. In the light of those weighty pronouncements, we find that he followed the proper approach by adopting the criteria laid down in the aforesaid cases. Therefore, the submission of counsel on ground 1(
3. a)should fail. We turn now to ground of appeal 1(b). Counsel for the first appellant argued that the trial Judge erroneously accepted and received in evidence the statement made by him to the police on the 1st May, 1980, which statement materially affected the final verdict. The objection to its admissibility was that it was rule III of the Judges' Rules which was applicable and not rule II. The argument of the defence was based on a statement made by the investigating officer which preceded the caution, and which statement reads as follows:- "I inform you that I am carrying out investigations with regard to offences, which in accordance with the material I have in my hands, you have committed in your capacity as Commissioner of Co-operative Development and Registrar of Co-operative Societies. " The appellant then was questioned, and the statement is in the form of questions and answers. The difference that results from the applicability of rule III to rule II is that if rule III was applicable only in exceptional cases relating to the offence questions should have been put to the accused person after he had been charged or informed that he may be prosecuted, although he might be questioned about other offences and such other questions as are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement. The accused should then be cautioned in the prescribed terms. The trial Judge, in his Ruling at the close of a side trial, ruled that once the material which the police had in their hands at the time did not justify the bringing of charges against the first appellant, examining it either with objective or subjective criteria, the statement was admissible as rule II, was the one applicable in the case irrespective of the unfortunate phraseology used by the investigating officer. In fact, the defence conceded that the material which the police had in their hands did not justify the preferment of charges at the time against the first appellant by any objective criteria, though they maintain in their argument that because of the phraseology used, no questions could be put to the appellant in the way that they were put to him and the statement was obtained there under. Having heard the submissions of both counsel, and particularly counsel for the prosecution, we agree that the phraseology used by the police does not form part of the caution as it is stated in the Judges' Rules, rule II, but it is an introduction to the subject only, and therefore, there is no particular phraseology which is binding. Furthermore, the phraseology used by the police, in our view, does not mean that the investigating officer had informed the accused that he had in his hands evidence which justified criminal proceedings. What constitutes evidence within this rule II it was decided in the case of R. v. Osborne [1973] 2 W.L.R. 209 which provides; the answer. In this case the defendants were arrested on suspicion of having taken part in a robbery and were taken to a police station. A police officer, who had reasonable grounds for suspecting the defendants but was of the opinion that he had no evidence to justify his suspicion interrogated them about their movements at the time of the robbery without cautioning them under rule II of the Judges' Rules 1964. On appeal against conviction on the grounds that the evidence of the interrogation was inadmissible because, in the absence of a caution rule II of the Judges' Rules 1964 had not been complied with and that the evidence of the police inspector at the parade had been wrongly admitted: Held, dismissing the appeal,

(1)that "evidence" in rule II of the Judges' Rules 1964 meant information which could be put before a Court; accordingly, an interrogation police officer was not bound to administer a caution until he had some information which he could put before a Court at 5 the beginning of a case, and that, since the interrogating officer had obtained no such information either before or during the interrogation of the defendants, his evidence was correctly put before the jury. Lawton L. J., in delivering the judgment of the Court, had this to say at p. 216: "Now I turn to the basis of the submission with regard to the rejection of the evidence of the interrogation. It is said on behalf of both defendants that by the time Chief Inspector Gittus came to carry out the interrogation he had evidence which would have afforded reasonable grounds for his suspecting that they had committed an offence. The first problem which arises in this case is what is meant by 'evidence' in this context. It is important for the Court to remind that the Judges' Rules ate intended for the guidance of police officers. They have to comply with the rules. If a police officer looks at the rules and asks himself the question 'What do they mean? ' he would answer in the light of his own police experience. In police experience, evidence means information which can be put before a Court: and it means that not only to police officers but to the general public, as is shown clearly by one of the meanings given to the word 'evidence* in the Shorter Oxford English Dictionary, 3rd ed.,

(1944)p. 643 which under the subheading 'Law', defines evidence' in these terms: 'Information that is given in a legal investigation, to establish the fact or point in question'. If a police officer, who was trying to understand what the word 'evidence' meant in the Judges' Rules, felt that he ought to turn to a standard legal textbook in the case the Oxford Dictionary definition was too wide, and he turned to Phipson on Evidence, 11th ed.

(1970), p. 2, para. 3, he would have found 'evidence' defined as follows: 'Evidence, as used in judicial proceedings, has several meanings. The two main senses of the word are: first, themeans,apart from argument and inference, whereby the Court is informed as to the issues of fact as ascertained by the pleadings; secondly, the subject- matter of such means'. In the judgment of this Court, that is how a police officer would understand these rules". Then Lawton L. J. goes on: "There are other indications in the rules that that is the right way for them to be construed. The rules contemplate three stages in the investigations leading up to somebody being brought before a Court for a criminal offence. The first is the gathering of information, and that can be gathered from anybody, including persons in custody provided they have not been charged. At the gathering of information stage no caution of any kind need be administered. The final stage, the one contemplated by rule III of the Judges' Rules, is when the police officer has got enough (and I stress the word 'enough') evidence to prefer a charge. That is clear from the introduction to the Judges' Rules which sets out the principle. But a police officer when carrying out an investigation meets a stage in between the mere gathering of information and the getting of enough evidence to prefer the charge. He reaches a stage where he has got the beginnings of evidence. It is at that stage that he must caution. In the judgment of this court, he is not bound to caution until he has got some information which he can put before the Court as the beginnings of a case". But in any event, with that weighty judicial pronouncement in mind, and assuming that in the present case there was a violation of the Judges' Rules, such violation does not automatically make a statement not admissible but it grants to the Court the discretionary power to decide whether to accept or to dismiss the said statement. Indeed, the trial Judge exercising his discretionary power accepted the statement made by the first appellant. As to what is, then, the basic criterion which a Court takes into consideration whether a statement is free and voluntary reference may be made to the case of Costas Andreou Kokkinos v. The Police

(1967)2 C.L.R.

1. In delivering a separate judgment, and having agreed with the reasoning and conclusions reached by the then learned President of this Court H.H. Vassiliades P., had this to say at p. 227: "The principle with regard to the admissibility of confessions is too well known and has been expounded in many English and Cyprus cases; and, in order to be admissible, a confession must be free and voluntary, and unless it be shown affirmatively, on the part of the prosecution, that it was made without the prisoner's being induced to make it by any promise of favour, or by menaces, or undue terror, it shall not be received in evidence against him, vide R. v. Thompson [1893] 2 Q.B. 12; Ibrahim v. The King [1914] A.C. 599 at p.
2. This principle was adopted and followed in the very well known case of R. v. GeorghiosSfongaras,

(1957)22 C.L.R. at p, 113, decided in the dark days of the EOKA fighting. See also the recent case of the Commissioners of Customs and Excise v. Harz and Another, (House of Lords) [1967] 1 All E.R. 177, where the principle relating to confessions was extended to the effect that a confession or statement by an accused is not admissible in evidence at his trial, if it was induced by a threat or promise, applies equally where the inducement does not relate to the charge or contemplated charge as where the inducement does so relate". See also the case of Michael Antoniou Petri v. The Police

(1968)2 C.L.R. 40 and Ioannides v.The Republic

(1968)2 C.L.R. 269.On the question whether or not the statement was voluntary see R. v. Voisin [1918] 1 K.B. 531 and R. v. Prager [1972] 1 W.L.R. 260. There is no doubt from the authorities that trial Courts in exercising their discretionary power have to take into consideration the consequences of the breach, the extent and the length and whether the violation turns on typical subjects. In Michael Antoniou Petri v.The Police supra,Vassiliades P., in dealing with the exercise of discretionary power with regard to the statements obtained by police has quoted a passage from Lord Devlin from his text book "The Criminal Prosecution in England"

(1960)at pp. 38-39, which reads: "The essence of the thing is that a Judge must be satisfied that some fair of unfair oppressive use has been made of policepower. If heissosatisfied, he will reject the evidence notwithstanding that there is no rule which specifically prohibits it: if he is not so satisfied he will admit the evidence even though there may have been some technical breach of one of the Rules. It must never be forgotten that the Judges' Rules were made for the guidance of the police and not for the circumscription of the judicial power". It is important to state further that with regard to the basic criteria which are taken into consideration by a trial judge for admitting or not the statement of an accused person, is whether it was given Voluntarily; compliance however with the Judges' 1 Rules would help considerably a Court to decide as to whether the statement taken was given voluntarily or not. The question whether a person has been duly cautioned before making a statement is a circumstance to be taken into account by the judge in exercising his discretion whether to exclude the statement, but the absence of a caution does not as a matter of law make the statement inadmissible. In the case of R. v. Voisin (supra) Lawrence J. in delivering the unanimous judgment of the Court, had this to say, at pp. 537, 538: "The alleged misreception of evidence relates to a paper writing containing the words 'BladieBelgiam'. This was written by the prisoner at the request of the police at a time while he was being detained at Bow Street. The trunk of the body of the murdered woman had been found contained in a parcel in Regent Square with a label containing these words upon it. The police were making investigations. They had requested the prisoner to go to Bow Street and to account for his movements at the supposed time of the murder. He had just made a statement which had been taken down in writing, and after he had done so he was asked whether he would have any objection to write down the two words 'Bloody Belgian'. He said 'Not at all' and then wrote them down as above. It was argued that that writing was inadmissible in evidence on the ground that it was obtained by the police without having first cautioned the prisoner and while he was in custody. A number of cases were called to our attention in which different views had been entertained by judges as to when statements by prisoners should and when they should not be excluded from consideration by the jury. It is clear, and has been frequently held, that the duty of the judge to exclude statements is one that must depend upon the particular circumstances of each case. The general principle is admirably stated by Lord Summer in his judgment in the Privy Council in Ibrahim v. Rex

(1)as follows: 'It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority'. The point of that passage is that the statement must be a voluntary statement; any statement which has been extorted by fear of prejudice or induced by hope of advantage held out by a person in authority is not admissible. As Lord Summer points out, logically these considerations go to the value of the statement rather than to its admissibility. The question at to whether a person has been duly cautioned before the statement was made is one of the circumstances that must be taken into consideration, but this is a circumstance upon which the judge should exercise his discretion. It cannot be said as a matter of law that the absence of a caution makes the statement inadmissible; it may tend to show that the person was not upon his guard as to the importance of what he was saying or as to its bearing upon some charge of which he has not been informed. In this case the prisoner wrote these words quite voluntarily. The mere fact that the words were written at the request of police officers, or that he was being detained at Bow Street, does not make the writinginadmissible in evidence". But there was another question raised, namely, whether there was a violation and whether the Judges' Rules have the force of law or only the force of an administrative practice as in England. Counsel for the first appellant further argued that from the provisions of section 3 and section 8, the Judges' Rules have definitely the force of law in Cyprus. On the contrary, it was the submission of counsel for the prosecution that in our country the Judges' Rules do not have the force of law but they were intended for the guidance of police officers only as to the manner of taking statements. There is no doubt that in Cyprus it was often argued before the Courts that because of section 8 of Cap. 155 the said Rules had the force of law but this argument remained open. In PantelisVrakas and Anotherv. The Republic,

(1973)2 C.L.R. 139, a case of premeditated murder, President Triantafyllides, myself and Justices A. Loizou and Malachtos, in delivering the judgment of the Court made reference to the effect that the Judges' Rules in Cyprus have no more force than they have in England. We think we would go further and state that the phraseology of section 8, and particularly the phrase "as those are in force regarding the taking of statements in England" supports the view that the Judges' Rules are applicable in Cyprus in exactly the same way as they are applicable in England and therefore they do not have the force of law, but a