clr/1983/1983_1_933.pdf

(1983)of section 3*of the Criminal Procedure (Temporary Provisions) Law, 1974(Law 42/74). TheDistrict Court held that Law42/74 left unaffected its discretionary powers under sections 93(h) and 94 of Cap. 155 and proceeded to examine the evidence before it for the purpose of applying, and it actually did apply, 5 the said two sections on the basis of the written summaries of evidence which were placed before it pursuant to the provisions of Law 42/74. Held,

(1)on the issue ofjurisdiction: That this Court possesses, under Article 155.4 of the 10 Constitution, jurisdiction to quash by means of orders of certiorari the committal of the applicants for trial by an Assize Court. Held, (II) on themeritsof the applications:

(1)That Law 42/74 (aswell as the Criminal Justice Act, 1967) 15 enables the committal of an accused person for trial on indictmentwithout theholdingofapreliminary inquiry and, therefore, without considering, at the stage of committal, whether or not there exists sufficient evidencejustifying the committal; and that isthe reason for which, as itisstated in note No.4to para. 158 20 in Halsbury's Lawsof England, 4th ed. there isno power, when a preliminary inquiry has not taken place, to discharge the accused.

(2)That the function of a District Court under Law 42/74 is not a merely automatic function, because the said Law by 25 its section 3 clearly provides that the Court "has power to commit for trial" and this provision does vest in the District Court concerned discretionary power to decide whether or not a particular case is one in which it is proper to commit the accused for trial by an Assize Court without holding a 30 preliminary inquiry; that such power isto beexercisedjudicially in the light of all relevant considerations, one of which could be the sufficiency of the evidence, in the sense that if either the District Court is prima facie of the view that there does not exist sufficient in law evidence justifying the committal for 35 trial ofthe accused, or ifcounsel appearing for the accused puts forward such an argument and the District Court is of the Section 3 is quoted at p. 937 post. 934 1 C.L.R. 5 10 15 20 25 30 In re Economides and Others opinion that this argument is prima facie well-founded, the District Court may decide not to commit the accused for trial without a preliminary inquiry, but instead to hold a preliminary inquiry, so as to avoid putting a person on trial before an Assi2e Court without sufficient evidence justifying such a course. (see section 3 of Law 42/74 and section 1of the Criminal Justice Act, 1967).

(3)That once the District Court decided not to hold a preliminary inquiry under section 92 of Cap. 155, it could not apply at all sections 93(

1. h)and 94 of Cap. 155, because such sections were only applicable if there was held a preliminary inquiry under section 92 of Cap. 155;that, what, in effect, has happened isthat, in actual fact, a preliminary inquiry was held, not on the basis of oral evidence, but on the basis only of the written summaries of evidence which were produced as envisaged by section 3(
2. b)of Law 42/74; that such a course was not lawfully open, under Law 42/74, to the District Court; that, therefore, on the face of the relevant decision of the District Court, as well as on the face of the proceedings before such Court as a whole, there appear errors of law as to the mode of application of Law 42/74, because though sections 93(
3. h)and 94 of Cap. 155 were not at allapplicable theywerenevertheless applied by the District Court, and as a result of such errors of law the District Court acted in excess of the powers vested in it by means of Law 42/74; accordingly the orders of certiorari applied for by the applicants will be issued and their sub judice committal for trial by the Assize Court will be quashed. Applications granted. Cases referred to: In re Ktimatias

(1977)2 C.L.R. 296; R. v. Gee [1936] 2 All E.R. 89 at p. 91; R. v. Northumberland Compensation Appeal Tribunal, Ex Parte Shaw [1952] 1 All E.R. 122 at pp. 125, 128; 35 R. v. Southampton Justices, Ex Parte Green [1975] 2 All E.R. 1073 at pp. 1079, 1080; R. v. Horseferry Road Magistrates' Court, Ex parte Pearson [1976] 2 All E.R. 264 at p. 266; R. v. Crown Court at Knightsbridge [1981] 3 All E.R. 417 at pp. 421, 422; 935 Inre Economidesand Another

(1983)R. v. WellsStreetMagistrates' Court,Ex ParteAlbanese [1981] 3 All E.R. 769; R. v. SurreyCoroner, Ex parte Campbell [1982]2 All E.R. 545 at pp. 552, 554; 0* Reillyv. Mackman[1982] 3Ail E.R. 1124at p. 1128; 5 R. v. Oxbridge Justices, Ex Parte Heward-Mills [1983] 1 All E.R. 530; R. v. RoscommonJustices [1894] 2 i.R. 158; R. v. Irwin. 80 Can. C.C. 314; R. v. Matheson, 123 Can. C.C. 60; 10 Constantinides v. Republic

(1978)2 C.L.R. 337 at pp. 352-353, 354-

1. Applications. Applications for an order of certiorari to remove into the Supreme Court of Cyprus and quash the order made by the 15 District Court of Larnaca on the 12th May, 1983 in Criminal Case No. 3982/83 whereby the applicants were committed for trial by an Assize Court. G. Cacoyiannis with Chr. Triantafyllides, for the applicant in Appl. No. 16/
2. 20 E. Efstalhiou, for the applicant in Appl. No. 17/
3. A.M. Angelides, Counsel of the Republic, for the Republic. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. By means of these two applications, for the filing of which leave was 25 granted on the 27th May, 1983 (in Applications Nos. 11/83 and 12/83, respectively) and which have been heard together in view of their related nature, the applicants seek to quash by means of orders of certiorari their committal for trial by an Assize Court in Larnaca which was ordered by the District 30 Court of Larnaca on 12th May 1983 in criminal case No. 3982/
4. It is common ground that the applicants were three out of the six accused in the said criminal case and that they were committed for trial together with two of their co-accused where- 35 as the sixth co-accused was discharged. The applicants were committed for trial without there having 936 1 C.L.R. 5 10 15 In re Economides and Others Triantafyllides P- been held a preliminary inquiry, as envisaged by section 92 of the Criminal Procedure Law, Cap. 155; their committal was ordered under the provisions of the Criminal Procedure (Temporary Provisions) Law, 1974 (Law 42/74), section 3 of which reads as follows:" 3 . Διαρκούσης της Ισχύος τοΟ περΐ Δικαστηρίων (Προσωριναί Διατάξεις) Νόμου τοΟ 1974 καΐ -παρά τας διατάξεις του άρθρου 92 του περϊ Ποινικής Δικονομίας Νόμου είς περι­ πτώσεις αδικημάτων προβλεπομένων Οπό τοΟ Ποινικού Κωδικός ή οίουδήποτε έτερου έν ϊσχύϊ Νόμου, εξαιρουμένων αδικημάτων τιμωρουμένων διά της ποινής τοΰ θανάτου, έάν— (α) ό Γενικός ΕΙσαγγελεύς της Δημοκρατίας παράσχη γραπτήν συγκατάθεοιν περί της μή άναγκαιότητος διεξαγωγής τοιαύτης προανακρίσεως- και (β) ή ουσία της καταθέσεως έκαστου μάρτυρος κατηγορίας τον όποιον προτίθεταινάκαλέση ή κατηγορούσα 'Αρχή, έττιδοθη προηγουμένως είς τόν κατηγορούμενον ή του δικηγόρον αύτοΰ, 20 25 30 το Δικαστήριον κέκτηται έξουσίαν νά παραπέμψη είς δίκην άνευ προανακρίσεως οίονδήποτε κατηγορούμενον". ("
5. During the continuance in force of the Courts of Justice (Temporary Provisions) Law, 1974, and notwith­ standing the provisions of section 92 of the Criminal Procedure Law, in cases of offences created by the Criminal Code or any other Law in force, with the exception of offences punishable with the death penalty, if— (a) the Attorney-General of the Republic gives his written consent to the effect that it is not necessary to hold a preliminary inquiry; and (b) the substance of the statement of each prosecution witness, whom the prosecution intends to call, is served in advance on the accused or his advocate, 35 the Court has power to commit for trial, without a preliminary inquiry, any accused person"). Before proceeding further I find it appropriate to state now my final decision on the issue of whether Ipossess,under Article 937 Triantafyllides P. In re Economides and Others

(1983)155.4 of the Constitution, jurisdiction to quash by means of orders of certiorari the committal of the applicants for trial byanAssize Court, if Ifindthat itisproper tomakesuchorders in the present instance. In a Decision which 1gave during the hearing of the afore- 5 mentioned Applications Nos 11/83and 12/83, on the 24th May 1983,* I had found, as then advised, that I possess such jurisdiction and now, after having giventhe matter further consideration, Iam still of the opinion that my said Decision iscorrect; and I shall not repeat once again all that I have said in such 10 Decision because its contents should be deemed 1o be incorporated herein. Iwould like, however, to add that in thecase of Inre Ktimatias,

(1977)2 C.L.R. 296, 1 had to examine whether or not to issue an order of certiorari for the purpose of quashing a com- 15 mittalfor trial by an AssizeCourt which wasordered under the provisions of Law 42/74; and, eventually, in the Ktimatias case, supra, the application for an order of certiorari was dismissed on grounds unrelated to my jurisdiction to make such an order on that occasion, which, actually, was never contested. 20 Also, it is, I think, useful to draw attention to the case of R. v. Gee,[1936] 2 All E.R. 89, 91,where there appears from the judgment of Goddard J, as he then was, that it was taken for granted at that time by the Court of Criminal Appeal in England that certiorari could be applied for in order to quash 25 a committal for trial on indictment. Moreover, the possession of jurisdiction by this Court to make an order of certiorari in a case of thisnature is, inmy view, put really beyond any doubt (notwithstanding certain passages to the contrary in Halsbury's Laws of England, 4th 30 ed., vols.1and 11, to which I have referred to in my Decision of 24th May, 1983) when such matter is examined in the light of the modern scope of certiorari, as it has been expounded authoritatively in relevant case-law in England, including decisionsoftheHouseofLords(see,inthisrespect,R.v.North- 35 umberland CompensationAppeal Tribunal, Ex parte Shaw, [1952] 1 All E.R. 122, 125, 128, R. v. Southampton Justices, exparteGreen, [1975]2AllE.R. 1073, 1079, 1080,R. v. Horseferry Road Magistrates'1 Court,ex parte Pearson, [1976] 2 All * Reported in

(1983)3 C.L.R. 925. 938 1 C.L.R. 5 10 15 20 In re Economides and Others Triantafyllides P. E.R. 264, 266, R. v. Crown Court at Knightsbridge, [1981] 3 All E.R. 417, 421, 422, i?. v. Wells Street Magistrates' Court. ex parte Albanese, [1981] 3 AH E.R. 769, R. v. Surrey Coroner, ex parte Campbell, [1982] 2 All E.R. 545, 552, 554, O'Reilly v. Mackman, [1982] 3 All E.R. 1124, 1128, and R. v. Uxbridge Justices, ex parte Heward^Mills, [1983] 1 All E.R. 530). The case of R. v. Roscommon Justices,

(1894)2 I.R. 158, on which the aforementioned passages in Halsbury's Laws of-England appear to have been mainly based; as well as the to the same effect two Canadian cases of R. v. Irwin, 80 Can. C.C. 314, and R. v. Matheson, 123 Can. C.C. 60, seem to be out of tune with themodern scope of the remedy of certiorari and, therefore, cannot be regarded as establishing that 1do not possess jurisdiction to entertain these applications. Moreover, they are in any event distinguishable from the present applications inasmuch as the applicants were committed for trial under Law 42/74, without having the benefit of the safeguard of a preliminary inquiry, whereas in the aforementioned Irish case of Roscommon and the Canadian cases of Irwin and Matheson it appears that the committal took place not only after a preliminary inquiry, but, also, after a hearing before a Grand Jury. In Constantinides v. The Republic,

(1978)2 C.L.R. 337, it was held, inter alia (at pp. 352-353) that Law 42/74 is a procedural enactment which has not repealed section 92 of Cap. 155, but 25 which has only made provision for an alternative thereto procedure in certain circumstances. It is useful to quote, also, the following passage from the judgment in the Constantinides case, supra (at pp. 354-355): 30 35 "It has, also, been contended by counsel for the appellant that section 3 of Law 42/74 is so vague that it is not clear what a Judge, when applying it, is expected to do and, in particular, whether he has to exercise any discretion before he proceeds to commit somebody for trial without a preliminary inquiry. We agree that Law 42/74 could have been more elaborately drafted; it is, actually, a special measure, introduced for a certain period of time, and we trust that ifit isdecided to retain it as a feature of our legislation then it will be reformulated in a mortf elaborate manner (see, 939 Triantafyllides Ρ- In re Economides and Others

(1983)for example, in England, the relevant provisions of the Criminal Justice Act; 1967). Irrespective, however, of the foregoing, and even assuming, without so deciding, that the District Judge who committed the appellant for trial under section-3 of the said Law had to exercise a dis- 5 cretion to some extent, we are of the opinion that all the prerequisites laid down in such section were duly satisfied and that it was a proper case in which to commit the appellant for trial by an Assize Court without holding a preliminary inquiry. It is to be borne in mind, further, 10 in this respect, that at the stage when the appellant was committed for trial no application was made on his behalf that a preliminary inquiry should take place and no objection was taken that this was not a proper case in which he could be committed without such an inquiry". 15 The relevant provisions of the Criminal Justice Act, 1967, in England, which is referred to in the above passage, are to be found in Halsbury's Statutes of England, 3rd ed., vol. 21, pp. 365-367 (see, also, as regards the effect of the application of such provisions Archbold on Pleading, Evidence and Practice 20 in Criminal Cases, 40th ed., para. 462, pp. 299-300, and Hals­ bury's Laws of England, 4th ed., vol. 11,pp. 107, 108, paras. 158, 159). Though the provisions of Law 42/74 are not the same, and notas elaborateandas comprehensive,astherelevantprovisions 25 (particularly sections 1and2)of the CriminalJustice Act, 1967, I regard the said two enactments as being clearly statutes of the same natureand with the same object, that is to enable the committal of an accused person for trial on indictmentwithout the holding of a preliminary inquiry and, therefore, without 30 considering, at the stage of committal, whether or not there exists sufficient evidence justifying the committal; and that is the reason for which, as it is stated in note No.4 to para. 158 in Halsbury's Laws of England, supra, thereis no power, when a preliminary inquiry has not taken place, to discharge the 35 accused. On the otherhand,I donot regard the function of a District Court under Law 42/74 as being a merely automatic function, 940 1 C.L.R. Ια re Economides and Others Triantafyllides P. because the said Law by its section 3 clearly provides thatthe Court "has power to commit for trial" and thisprovision does vest,in my opinion,intheDistrictCourtconcerned discretionary power todecidewhether or nota particular case is onein which 5 it is proper to committhe accused for trial by an AssizeCourt without holding a preliminary inquiry; and such power is ιο be exercised, of course, judicially in the light of all relevant considerations,one of which could be the sufficiency of the evidence, in the sense that if citherthe District Court is prima 10 facie of the view that there does not exist sufficient in law evidence justifying the.committal for trial of the accused, or if counsel appearing for the accused puts forwards such an argument andtheDistrict Courtis of theopinionthat this argu­ ment is prima facie well-founded, theDistrict Courtmaydecide 15 not to commit the accused for trial without a preliminary inquiry, but instead tohold apreliminary inquiry, so as to avoid putting a person on trial before an Assize Court without suffi­ cient evidence justifying such a course. I have formed the above opinion on the basis, inter alia, 20 of what seems to meto be theproper construction of section 3 of Law 42/74 and in the light of the provisions of section 1 of the Criminal Justice Act, 1967, in England, which, though they are not to be found in our Law 42/74 and are not, there­ fore, to be treated as being applicable in Cyprus, do indicate 25 by way of useful example what are the elements which might lead a District Court in Cyprus to refuse, under section 3 of Law 42/74, to commit for trial without holding a preliminary inquiry; and this view of mine as regards the manner of the proper application of legislation such as Law 42/74 is strength30 ened by what is stated in relation to the Criminal Justice Act, 1967, in England, in Halsbury's Statutes and Halsbury's Laws, supra. Counsel who appeared before me in the present proceedings on behalf of the Republic has, indeed, agreed that theDistrict 35 Court in a case such as thepresent one had a discretion to decide, under Law 42/74, whether or not a preliminary inquiry was to be held. Before, however, the District Court there did not appear counsel on behalf of the Republic but a police prosecuting 941 Triantafyllides P. In re Economides and Others

(1983)officer who invited the District Court to find that there was sufficient evidence justifying the committal of the applicants for trial; and, in the end, as it appears from the relevant decision of theDistrict Court, dated 12thMay 1983,the District Court held that Law 42/74 left unaffected its discretionary 5 powers under section 93(

1. h)and 94 of Cap. 155 and proceeded to examine the evidence before it for the purpose of applying, and it actually did apply, the said two sections on the basis of the written summaries of evidence which were placed before it pursuant to the provisions of Law 42/74. 10 But, in my opinion, once the District Court decided not to hold a preliminary inquiry under section 92 of Cap. 155, it could not apply at all sections93(h)and 94of Cap. 155, because such sections are only applicable if there is held a preliminary inquiry under section 92 of Cap. 155. 15 I agree with counsel for the applicants that what, in effect, has happened in the present case is that, in actual fact, a preliminary inquiry was held, not on the basis of oral evidence, butonthebasisonly ofthewritten summariesofevidencewhich were produced as envisaged by section 3(
2. b)of Law 42/74; 20 and, in my view, such a course was not lawfully open, under Law 42/74, to the District Court. Also, it might be observed at this stage, that once sections 93(
3. h)and 94 of Cap. 155were not applicable the provisions of Article 30 of the Constitution, which wererelied on by counsel 25 for the applicants, were not applicable, either. It follows from the foregoing that on the face of the relevant decision of the Distiict Court, as well as on the face of the proceedings before such Court as a whole, there appear errors of law as to the mode of application of Law 42/74, because 30 though sections 93(
4. h)and 94 of Cap. 155 were not at all applicable they were nevertheless appUed by the District Court; and as a result of such errors of law the District Court actedinexcessofthepowersvestedinitbymeansofLaw42/74. Consequently, i have to issue the orders of certiorari applied 35 for by the applicants and to quash their subjudice committal for trial by the Assize Court. 942 1 C.L.R. In re Economides and Others Triantafyllides P. The effect of issuing, as aforesaid, orders of certiorari is not, of course, the acquittal of the applicants as accused persons in the particular criminal proceedings; and they, therefore, are still liable to be prosecuted afresh, in respect of the offences in 5 relation to which they were charged before the District Court, either by means of a preliminary inquiry or by virtue of the procedure under Law 42/74; and if the latter course is adopted then the District Court will have to decide whether or not to commit them for trial without holding a preliminary 10 inquiry. I should, further, make it clear, before concluding, that the orders of certiorari which I have issued in this case, entail only the quashing of the committal for trial of the applicants and not of any of their co-accused, too, who have not applied, 15 also, for orders of certiorari; nor have I quashed by the just issued orders of certiorari the discharge of the co-accused of the applicants who wasnot committed for trial by the District Court, sincecounselfor the Republicdidnot applyfor an order of certiorari quashing his discharge. 20 In the light of all the relevant considerations I have decided not to make any order as to the costs of these applications. Applications granted with no orderas to costs. 943