clr/1983/1983_2_107.pdf

(1983)detention of appellants. From the evidence, it appeared thai the crimes under investigation were of exceptional gravity, committed within the framework of a conspiracy transcending the bounds of Cyprus. Upon appeal against the fifth remand order Counsel for 5 appellant ! contended that once the facts relevant to the complicity of his client in the conspiracy came to light, there was no justification for the prolongation of his detention in order to uncover every aspect of the conspiracy. Counsel relied on the provisions of Article 11.2(c) of the Constitution and argued 10 that authority for the remand of a suspect incustody is constitutionally restricted to investigations solely concerning the commission of a crime by the suspect. Counsel for appellant No. 2 contended that no grounds were disclosed justifying the formation of a reasonable suspicion connecting him with the commission of the crimes under investigation. 15 Held, (after stating theprinciples on whichthe Court of Appeal interferes with a remand order—vide p. 111post) that the investigation into the commission of a crime is not completed when its nature is established, nor does the process of investigation come to an end vis-a-vis any participant in the crime when his complicity becomes apparent or certain; that the circumstances under which the crime was committed entailing discovery of the culprits as well, may cast a wholly different complexion on the nature of the crime; that in the case of conspiracy, bearing in mind the definition of the crime (see s. 371 of the Criminal Code Cap. 154) identification of the participants to the crime and details thereto are facts highly relevant to the investigation of the crime; that the process of investigation of the crime of conspiracy is not completed before the participants are identified and the details established; accordingly the appeal of appellant 1 must fail.

(2)(After dealing with burden of proof) that reasonable suspicion of involvement in the crime under investigation is a 35 prerequisite to remanding asuspect incustody (seeArticle 11.2(c) of the Constitution and s.24 of the Criminal Procedure Law, Cap. 155); that in dealing with an application for remand a Judge has to ascertain whether the suspicion is genuinely enter108 20 25 30 2 C.L.R. 5 10 Stamataris mid Another \. Police taincd: that a suspicion is reasonable if evidence, in the hands of the Police, reasonably connects the suspect with the commission of the crime under investigation; that in an application to renew a remand order the Prosecution must satisfy the Court that the time that elapsed wasproperly utilised for the purpose the order was granted, that is,for the investigation of the crime under consideration and that the prolongation of the remand is reasonably necessary for the investigation; that the trial Judge who dealt with the application, faced the issue before him in the right perspective and nothing we heard justified interference with the exercise of his discretion; accordingly the appeal of appellant 2 must. also. fail. Appeals dismissed Cases referred t o : 15 Hasip v. The Police. 1964 C.L.R. 48. Papacleovoulou andAnother v. The Police

(1974)2 C.L.R. 55; R. v. Nottingham Justices [1980]2All E.R. 775at p.

1. Appeals against remand orders. Appeals by Andreas Stamataris and Another against the 20 orders of the District Court of Larnaca (Eliades, D.J.) made on the 7th April, 1983 whereby appellants were remanded in Police custody for eight days in relation to the investigation into the commission by them of the offences of illegal possession and importation of narcotics in Cyprus. 25 A. Poetis, for appellant
2. N. Cleanthous, for appellant
3. A. M. Angelides, Senior Counsel of the Republic, for the respondents. 30 HADJIANASTASSIOU J.; The judgment of the Court will be delivered by Mr. Justice Pikis. PIKIS J.: The appellants were arrested on 5.3.83 and subsequently remanded in custody for four consecutive weeks, for possession and import of narcotics and a conspiracy associated therewith. On 7.4.83 Eliades D.J. remanded them in custody 35 for a further period of eight days - the fifth remand order and not the third as recorded by mistake in the judgment - on the application of Chief inspector Prokopis Georghiou. the investigating officer. 109 Pikis J. Stamataris and Another v. Police

(1983)Before ordering the remand of the suspects for a further period ofeightdays,thelearned Judgeheard evidencefrom the investigating officer on theprogress of the investigation and the circumstances necessitating, in hisview,theprolongation of the detention of appellants. From theevidence, it appears that the 5 crimesunderinvestigation areofexceptional gravity,committed within the framework of a conspiracy transcending the bounds of Cyprus. Since Che discovery of the crimes of illegal possessionand importation ofnarcoticsin Cyprusand, theassumption of investigations, persons residing abroad have been active 10 inmaking threats to variouspersonswitha viewto intimidating them into silence and disrupting the investigations. Apparently, the collaboration of the police forces of other countries has been enlisted in aid of the investigations, in order to elicit the conspiracy and every ramification of it. According to the evi- 15 dence of the investigating officer, the remand of the appellants in custody, wasstill necessary, notwithstanding the effluxion of nearly a month since their arrest, in the interests of the proper investigation of the case, as well as the safety of the suspects themselves. Notwithstanding the endeavours of the Police, 20 their investigations were not completed. The nature and magnitude of the crimes required lengthy investigations that could not have been concluded within the period of about a month that elapsed. On behalf of the appellants, wewereinvited tohold that the 25 material before the Court was insufficient to support the application. The main ground urged before us for appellant 1 vitiating, in the submission of his counsel, the order made,was that the Judge took into account an irrelevant consideration invalidating the exercise of his discretion. The extraneous 30 factor that wasallowedto influence theJudge,wasthe amenity the Police was recognised to enjoy to inquire in the context of this investigation into details of the conspiracy relating to partiesto it other than thesuspect. In the submission of counsel,oncethe facts relevant to the complicity of his client in the 35 conspiracy came to light, there was no justification for the prolongation of his detention in order to uncover every aspect of the conspiracy. Counsel relied on the provisions of Article 11.2(c) of the Constitution and argued that authority for the remand of a suspect in custody is constitutionally restricted to 40 110 2 C.L.R. Stamataris and Another v. Police Pikis J. investigations, solely concerning the commission of a crime by the suspect. Theessence of the submission pressed before uson behalf of appellant 2,is that no grounds weredisclosedjustifying the for5 mation of a reasonable suspicion connecting him with the commission of the crimes under investigation. The Judge held otherwise. He rested his decision on the material before him that extended to examination ofcertain aspects of documentary evidence in the possession of the Police. 10 Decision for theremand of a suspect in custody for purposes. of investigation, as well as its renewal, rests with the Judge dealing with the remand application. He must evaluate the material before him and makeadecision whether toremand the suspect in custody or not, guided by the principles relevant to 15 the exercise of his discretion. (See, inter alia, Hasip v. The Police, 1964 C.L.R. 48). It is now well settled that an appeal liesfrom a remand order. It isunnecessary toexploretheprocedural basis for this right; suffice it to say that if no right to. appeal existed, thedemands of freedom alone wouldjustify the 20 acknowledgment of such a right. An appeal against a remand order is not by way of rehearing. Ourjurisdiction is confined to determining whether the Judge exercised his discretion judicially. (See, Yiannakis Papacleovoulou and Another v. The Police

(1974)2C.L.R. 55). This, in turn, entitles the Supreme 25 Court to examine the principles that guided the Judge in the exercise of his discretion and matters taken into consideration. If theJudge applied the correctprinciplesand did not payheed to facts extraneous to a remand order, there is no room for interference by an appellate bench. We are not.required on 30 appealtoevaluatethefactsrelevanttotheexerciseoftheJudge's discretion, that isexclusively the task of the Judge determining the remand order. It is impermissible to substitute our discretionfor that ofthetrialJudge. Heisinlawthearbiterofthe remand application. So long as he actsjudicially, his decision 35 must be upheld. No suggestion was made that the Judge misdirected himself ontheprinciplesthatshouldgoverntheexerciseofhisdiscretion. On the contrary, as one may gather from his ruling, he was fully awareoftherelevatprinciplesandsought toapplythem to 111 I'ikis J . Stamatarii. and Another \. Police

(1983)the facts of the case. He was live to the fact that the burden to ;,ustify a remand order rests on the Police Authorities, as well as that such burden becomes progressively heavier with every new application for the remand of the suspect in custody. The principle that should guide the Courts in this area, is this: 5 The burden of proof rises in direct proportion to the length •>f the period of detention for which it is sought to detain the subject The longer the period to detain the subject becomes, correspondingly higher becomes the burden cast upon the authorities to justify the limitation of freedom. Reverting to the complaint of appellant 1, as to abuse of the discretionary powers of the Court, the submission of counsel that a person in custody cannot be remanded for the investigation of a crime other than that for which he was arrested, is a sound one. A further period of detention of a person in custo- 15 dy, can only be approved in order to facilitate investigation". into a crime for which he is detained. But we are unable to uphold the submission, totally unrelated to the principle just mentioned that, Article 11.2(

1. c)of the Constitution limits the power of the Court to remand one of two, or more persons, 20 suspected of participation in a crime after his complicity has become reasonably apparent. The argument here is that, inasmuch as appellant 1 had made a statement which, judged with other evidence collected by the Police, tended to establish his complicity, if any, in the crime, it was impermissible for the 25 Police Authorities to ask for the prolongation of his detention for the purpose of unravelling the case in its entirety. The investigation into the commission of a crime is not completed when its nature is established, nor does the process of investigation come to an end vis-a-visanyparticipant inthe crime when 30 his complicity becomes apparent or certain. The circumstances under which the crime was committed entailing discovery of the culprits as well, may cast a wholly different complexion on the nature of the crime. And, in the case of conspiracy, bearing in mind the definition of the crime supplied by s.371 of the 35 Criminal Code - Cap. 154, identification of the participants to the crime and details thereto are facts highly relevant to the investigation of the crime. In our judgment, the argument pressed on behalf of appellant 1 is misconceived. The process 112 10 2 C.L.R. Stamataris and Another t. Police Pikis J. of investigation of the crime of conspiracy is not completed before the participants are identified and the details established. The case for appellant 2 is that the material before the Court did not raise against him a reasonable suspicion of compli5 city in the crime. Reasonable suspicion of involvement in the crimeunder investigation isaprerequisite to remanding a suspect in custody. This is manifest from the provisions of Article 11.2(
2. c)of the Constitution and a reading of s.24 of the Criminal Procedure Law, subject to and in accordance with the provisions 10 of the aforementioned fundamental article of the Constitution. (See, Article 188.1 of the Constitution). Reasonable suspicion must exist at every stage of the investigation: at the time of arrest and on every subsequent application for the remand of the suspect in custody. 15 20 25 The task of the Judge dealing with an application for remand is twofold:(
3. a)To ascertainwhether the suspicion isgenuinely entertained. This is essential in order to eliminate the possibility of the Police Authorities abusing their powers to seek the remand of a suspect in custody. (
4. b)To decide whether the suspicion is reasonable. It is reasonable if evidence, in the hands of the Police, reasonably connects the suspect with the commission of the crime under investigation. The Judge in this case formed the view that the suspicion of the Police Authorities was reasonable. In examining the grounds upon which the Police based their application, he went so far as to examine part of the police file on the case, a course indicative of the care with which the Judge 30 approached the application of the Police. Neither appellant disputed the course followed bythe trial Judge,nor areweasked in this appeal to pronounce on its correctness. We mention this fact in passing in order to stress the length to which the Judge went.to examine the basis of the application. 35 The Judge dealing with a remand application has to discharge a fine task. He must strive to maintain a healthy balance between individual liberty on the one hand and, public interest 113 JPikis J . Stamataris and Another v. Police

(1983)intheinvestigation and suppression of crime,on the other. As Donaldson, L.J. as he then was, observed in R. v. Nottingham Justices [1980] 2 All E.R. 775, 779, any vnusual delay on the part of the Prosecution, is a factor militating for the release of the accused. The observations were made in the context of a 5 delay to prosecute but apply with equal force to delays in the investigation of crime. On an application, as in this case, to renew a remand order, the Prosecution must satisfy the Court that (

1. a)The time that elapsed was properly utilised for the 10 purpose the order was granted, that is, for the investigation of the crime under consideration and, (
2. b)theprolongation ofthe remand isreasonably necessary for the investigation. The learned trial Judge who dealt with the application, faced 15 the issue before him in the right perspective and nothing wc heard justifies interference with the exercise of his discretion. The appeals are dismissed. Appeals dismissed. 114