clr/1976/1976_2_93.pdf

(1975)2 C.L.R. 166 at pp. 168-189. Appeal—Right of appeal—No constitutionally entrenched right of appeal—Articles 30 and 155 of the Constitution and Article 6 of the European Convention on Human Rights—Right of Appeal, existing under the Criminal Procedure Law, Cap. 155, to be enjoyed, by those using it, in such a manner as happens to be feasible in the light of the specific situation in each particular case. The applicant was on August 21, 1975 convicted on several counts involving offences of dishonesty* and was sentenced to terms of imprisonment ranging from six months to three years, running concurrently. He appealed both against his conviction and sentences. Bail pending appeal was refused by this Court on October 29, 1975,** and the appeal was heard on various dates between November 17, 1975 and January 30, 1976 but the reserved judgment of the Court had not yet been delivered. The hearing of the appeal lasted in all for twenty-three days, during which this Court sat, as a rule both in the mornings and in the afternoons. The record of the trial, which lasted before the Assize Court for two months, consisted of more than 900 pages. Due to the unexpected and unprecedented length of the proceedings in this appeal and in view of its other urgent * Stealing byservant and fraudulent false accounting. ** Vide

(1975)2C.L.R. 166 93 1976 April 16 CHRISTODOULOS POLYNIKI work this Court has not been able to hear this appeal without interruptions and according to the Court's programme of work it was impossible for the Court to be ready with its decision as to its outcome in less than two months time. ZISIMIDES V. THE REPUBLIC The applicantfiledonApril 10, 1976,an application bymeans of which he sought to be released on bail pending the delivery of the reserved judgment. Counsel for the applicant invited the Court to distinguish this case from that of Petriv. Police*

(1968)2 C.L.R. 1 in which bail pending the outcome of the appeal was refused; he has argued that there the appellate proceedings were concluded more expeditiously than in the present instance. 10 Held, dismissingthe application, in the absence of any so compelling special reasons as would require us to take the quite exceptional step of allowing an appellant out on bail 15 pending the outcome of his appeal (see Zisimidesv. The Republic

(1975)2 C.L.R. 166 at p. 168-169) we cannot exercise our discretionary powers in favour of the applicant so as to release him on bail pending the determination of his appeal merely on the ground that due to the very lengthy nature of 20 the case this Court has not yet been able to deliver its reserved judgment in his appeal. Application dismissed. Percuriam:

(1)It should not be lost sight of, at all, thai the applicant stands convicted by a competent Court and that he 25 has no constitutionally entrenched right of appeal (see Article 30 of our Constitution which corresponds to Article 6 of the European Convention on Human Rights; see also, Article 155 of the Constitution).

(2)The right of appeal existing under the Criminal Proce- 30 dure Law, Cap. 155 has to be enjoyed, by those who use it, in suchamannerashappenstobefeasible inthelight ofthespecific situation in each particular case. Cases referred to: Zisimidesv. The Republic

(1975)2 C.L.R. 166 at pp. 168-169; 35 Petri v. The Police

(1968)2 C.L.R. 1. See thefacts ofthiscaseat pp.95-96 post: 94 Application for bail. Application for bail pending the delivery of the reserved judgment in an appeal against conviction and concurrent sentences, ranging from six months to three years' imprisonment, 5 for offences of stealing by servant, contrary to sections 255 and 268 of the Criminal Code, Cap. 154 and of fraudulent false accounting, contrary to section 313(

1. c)of the Criminal Code, Cap. 154. G. Cacoyiannis, for the applicant. 10 R. Gavrielides, Counsel of the Republic, for the respondent. Cur. adv. vult. The judgment of the Court was delivered by:TRIANTAFYLLIDES, P.: The applicant was convicted by the Limassol Assizes,in criminal caseNo. 8386/75,on several counts 15 involving offences of dishonesty, such as stealing by a servant, contrary to sections 255 and 268 of the Criminal Code, Cap. 154, and fraudulent false accounting, contrary to section 313(
2. c)of Cap. 154. He was sentenced to terms of imprisonment ranging from six months to three years, running concurrently. 20 He has appealed, both against his conviction and against the sentences imposed on him, by filing Criminal Appeal No. 3645. An application for the release of the applicant on bail pending .the determination of his Appeal was dismissed on October 29, 1975 (see Zisimides.v. The Republic,

(1975)2 C.L.R. 166). 25 The hearing of hisAppeal wasconcluded on January 30, 1976, but the reserved judgment of this Court has not yet been delivered. So, the applicant has filed on April 10, 1976,the present application by means of which he seeks to be released on bail pending the delivery of the reserved judgment. 30 Counsel for the applicant has invited us to distinguish this casefrom that of Petri v. ThePolice,

(1968)2 C.L.R. 1,in which bail pending the outcome of the Appeal was refused; he has argued that therethe appellate proceedings wereconcluded more expeditiously than in the present instance. 35 It is, therefore, pertinent to mention certain relevant dates as regardsthe Petri case: The appellant in that casewas sentenced on December 29, 1967, to oneyear's imprisonment; bail pending the Appeal was refused by this Court on January 9, 1968, the hearing of the Appeal began on February 6, 1968,and was con95 1976 April.16 CHRISTODOULOS "POLYNIKI ZISIMIDES V. THE REPUBLIC 1976 April 16 CHRISTODOULOS POLYNIKI ZISIMIDES v. THE REPUBUC eluded on February 19, 1968; the outcome of the appeal was announced on February 23, 1968,and a reasonedjudgment was delivered later, on April 13,

1. In thepresent casetheappellant wassentenced, on August 21, 1975,to threeyears'imprisonment; bail pending the appeal was 5 refused by this Court on October 29, 1975,and the appeal was heard onvariousdatesbetween November 17,1975and January 30,
2. The hearing of the Appeal lasted in all for twentythree days, during which this Court sat, as a rule, both in the mornings and in the afternoons. Therecord ofthetrial,which 10 lasted before the Assize Court for two whole months, consists of more than 900pages. In view of the complexity of thecase and of the numerous issues that have been raised on appealone of them being a novel thorny legal matter-counsel for the appellant addressed us for thirteen and a half days, counsel for 15 the respondent addressed us for six days, and then counsel for the appellant replied for another three and a half days. Unfortunately due to the unexpected and unprecedented length of the proceedings in this appeal, and in view, also, of other urgent work of this Court, wehave not been ableto hear 20 this appeal without interruptions and, according to our present programme of work, it isimpossiblefor us to beready with our decision as to its outcome in less than two months' time from now;because,in ordertodojusticeinthiscase,wehavetostudy carefully its voluminous record in the light of elaborate submis- 25 sions of learned counsel on both sidesand to peruse more than 250 cases and textbooks which have been cited in argument before us. Thequestion to beansweredbyus,now,iswhether or notthe applicant should be released on bail because his appeal could 30 not be determined as expeditiously as in the Petricase, supra, and becauseitwill not bedetermined before thelapseofanother two months from today. It should not be lost sight of, at all, that the applicant stands convicted by a competent Court and that he has no constitu- 35 tionally entrenched right of appeal; this is clear from the wording of Article 30 of our Constitution, which corresponds to Article 6 of the European Convention on Human Rights; and Article 6 of the Convention has been authoritatively construed asnot providing for the existence of a right of appeal. Article 40 155 ofour Constitution vestsinthesupremejudicial organ inthe 96 State the jurisdiction to deal with appeals, but it does not create, by itself, a right of appeal. It is true, on the other hand, that under the relevant statute, the Criminal Procedure Law, Cap. 155, there does exist a right 5 of appeal in a case such as the present one; but such right is to be enjoyed, by those who use it, in such a manner as happens to be feasible in the light of the specific situation in each particular case. An appellant who can present his appeal in a way involving 10 the raising of rather fewgrounds of appeal, which can be argued in a day or two, has, naturally,"a much better chance of having his appeal quickly disposed of than an appellant, such as the present one, whose appeal has become a veritable forensic marathon. 15 We do not want to be misunderstood, in the least, that we are expressing the view that in this case the right of appeal has been abused in any way; we are merely stating what is the position as it has developed due to the very complicated nature of this appeal; and weare,indeed, grateful to counsel on both sides 20 for the valuable assistance which they have given us. Having given the matter most anxious consideration we have decided that, in the absence of any so compelling special reasons as would requireus to take the quiteexceptional step of allowing an appellant out on bail pending the outcome of his appeal 25 (and see, in this respect, the Zisimides case, supra, at pp. 168169), we cannot exercise our discretionary powers in favour of the applicant so as to release him on bail pending the determination of his appeal merely on the ground that due to the very lengthy nature of the case this Court has not yet been able to 30 deliver its reserved judgment in his appeal. In the result this application has to be dismissed. Application dismissed. 97 1976 April 16 CHRISTODOULOS POLYNIKI ZISIMIDES v. T H E REPUBLIC