clr/1984/1984_1_661.pdf

(6)and (c) of the Criminal Procedure Law, Cap. 155— Even if Article 30.2 of the Constitution is applicable to such rulings, having in mind their interlocutory nature, and reading them together they are '"reasoned** in the sense of such Article. Criminal Procedure—Trial in criminal cases—Prima facie case— Section 74

(1)(

1. b)and (
2. c)of the Criminal Procedure Law, Cap. 155—Ruling calling upon accused to defend herself—Should not amount, in any way, to a final pronouncement as regardsher gitilt or innocence—Unless it is found tliat no prima facie case has been made out against the accused sufficiently to require her to make a defence. Certiorari—Mandamus—Discretion of the Court—Rulings calling upon accused to defend herself in a criminal trial—No excess of jurisdiction, or refusal to exercise t jurisdiction—And no error of law which is apparent on the face of the record—Not aproper case in whichto quashby means of an order of certiorari the said rulings or to make an order of mandamus—Moreover this is not an instance which comes within the category of cases inwhich certiorariissuesasamatter of course"ex debitojustitiae'". 661 tn re (\jnlelidou

(1984)The .ippliumt and anot'-.ei person wete tried by the District Court of Limassol on a charge-sheet containing 36 counts \fter the close of the case for the prosecution Counsel for both .Kcused suhmitted that the Prosecution did not prove a prima lacie case against their clients sufficient!) το require ihem to make their defence 5 Thereupon the Court luted* that "both accused should be tailed upon to make their defence on all the counts they are charged except on counts Nos 80 I9(> and 242'' Thereafter Counsel for the applicant complained that the abo\e ruling 10 was not duly reasoned and stated that if there is no expansion i-f the ruling he proposed to ask the Couri to state a case for •he opinion of the Supreme Court The trial Judge gave a second ruling** whereby he dismissed the application for ex­ pansion of his first ruling and proceeded again to call upon the 15 accused to defend themselves on the counts they were called upon m the first ruling Upon an application lot (

1. a)An order of mandamus requiring the trial Judge lo decide whether or not he accepts certain legal arguments 20 which were put forward at the close of the case for the prosecution by counsel for the applicant regarding admissibility of evidence (
2. b)An order oi certiorari quashing the alleged failure of the tnal Judge to give a reasoned decision, at the 25 close of the case for the prosecution, as to whether or not he accepts :he aforementioned arguments of counsel for the applicant. (
3. c)An order of mandamus requiring the trial Judge to reserve as a question of l?w for the opinion of the 30 Supreme Court, under section 143 of the Criminal Procedure Law. Cap 155, the correctness of his alleged failure to pronounce on the aforesaid legal arguments, and an order of certiorari quashing his refusal to reserve for the opinion of the Supreme Court such 35 question of law * The ruling is quoted in full at ρ 669 post. · · The second ruling is quoted at pp. 669-670 post 662 I .It In re 1'anteiidou field.

(1)that bearing in mind the principles that should guide the exercise of the discretionary powers of <* trial Court in reserving a question of law under section 14S of Cap 15^ on the application of an accused person., this is not a proper case in which to dictate to the trial Court, by means of prerogative orders of mandamus or certiorari how to exercise such discre­ tionary powers and, therefore, the s.ud orders cannot be made as applied for by the applicant

(2)That the sufficiency of reasoning depends largely on the circumstances of each particular case and. bearing in mind inter alia, the interlocutory nature of the two rulings, this Court is of the view that when, they are read together they must be found to contain sufficient reasoning for the purpose for which they were given, and. thus, this Court is not prepared to hold that, even if Article 30 2 is applicable to them they are not "reasoned" in the sense of such Article

(3)Tiiat at the stage of a criminal trial to which paragraphs (

1. b)and (
2. c)of subsection I of section 74 ol Cap 155 relate the decision to be given by the trial Court should not amount in any way to a final pionouncement as regards tue guilt or inno­ cence of the accused unless, of course it is tound that no prima facie case has been made out against the accused sufficient!} to require him to make α defence, that it is obvious from his complained of rulings that the trial Judge went through the aiguments advanced by counsel for the applicant, as well as by the prosecuting officer, and examined the relevant parts of the evidence that had been commented on by them and without making any finding as to the credibility of <>ny witness—as he indeed, ought not to have made—he reached the view that the applicant should be called upon to make her defence, that. consequeuily, the trial Judge, m acting as he has done at that particular stage of the trial, has not acted in excess of his juris­ diction, nor has he refused to exercise his jurisdiction, nor has heacted ina manner resulting inan error of law which is apparent on the face of the record, and that,therefore, this is not a proper case in which to quash by means of an order of certiorari either or both of his two rulings concerned

(4)That, in any event, this is not an instance which comes within the category of cases in which certiorari issues as a matter 663 In re Pantelidou

(1984)of course "ex debito justitiae" (see, in this respect, Halsbury's Laws of England, 4th ed., vol. 1, paras. 160 to 162, pp. 156, f57); and that, as, therefore, the making of an order of certiorari would be discretionary this Court would not, in the exercise of its discretion, after having taken into account all relevant factors, have been inclined to grant an order of certiorari in the present case even if there existed—(and in fact there does not exist)—a ground eutitling it in law to do so. 5

(5)That also, on the basis of wl'at has already been stated, there is no proper reason for making an order of mandamus; 10 that inanycasethegranting ofthe remedy of mandamusis discre­ tionary (see Halsbury's Laws of England, 4th ed., vol. 1, para. 91, p. 112) and this Court would not be prepared to grant such an order directing, in effect, thetrial Judge to make, at the stage of calling upon the applicant to make her defence, specific 15 findings as regards admissibility of evidence or as regards any other matter on which the trial Judge did not have to pronounce for the purpose of the proper application of the provisions of section 74(l)(c) of Cap, 155; accordingly the application must fail. 20 Application dismissed. Cases referred t o : Police v. Georghiades

(1983)2 CX.R. 33 at pp. 38, 50; Neumeister Case (European Court of Human Rights, decided on 29.6.1968); 25 Wemhoff Case (European Court of Human Rights, decided on 29.6.1968); Ringeisen Case (European Court of Human Rights, decided on 16.7.1971); Huber v. Austria (Decisions and Reports of European Commission of Human Rights, Vol. 2, p. 11); 30 Haiti v. Federal Republic of Germany (Decisions and Reports of the European Commission of Human Rights, Vol. 6, p. 22); Haase v. Federal Republic of Germany (Decision and Reports 35 of the European Commission of Human Rights, Vol. Π, P- 78); 664 1 C.L.R. In re Pantdidoo In Re Constantittou

(1983)I C.L.R. 410; Attorney-General of the Republic v. Enimerotis Publishing Co. Ltd.

(1966)2 C.L.R. 25 at p. 30: Katsarowjs v. Police

(1973)2 C.L.R. 17 at p. 35: 5 Petsas v. Republic

(1973)2 C.L.R. 84 at p. 86: Foumarts v. Republic

(1978)2 C.L.R. 28 at p. 37; Neophytou v. Police

(1981)2 C.L.R. 195 at p. 198: PioneerCandy Ltd. v. Steiios Tryfon &Sons Ltd.

(1981)I C.L.R. 540 at p. 541; 10 Papageorghiou v. HjiPieras

(1981)I C.L.R. 560 at p. 563; Hambou v. Michael

(1981)I C.L.R. 618 at p. 619: Azinas v. The Police

(1981)2 C.L.R. 9 at pp. 52-57: Attorney-General of the Republic v. Morphilis

(1975)I C.L.R. 138. 15 20 Application. Application for an order of mandamus requiring the trial judge who is hearing a criminal case in which the. applicant is an accused to decide whether or not he accepts certain legat arguments which were put forward a t the close of the case for the prosecution by Counsel for the applicant regarding admissibility of evidence. G. Cacoyiannis, for the applicant. 25 A. Frangos, Senior Counsel of the Republic, with G. Constantinou, Counsel of the Republic, for the Republic. Cur. adv. vult. 30 TRIANTAFYLLIDES P. read the following judgment. By means of this application, of which the scope was somewhat limited during its hearing, the applicant seeks, in effect, an order of mandamus requiring the trial Judge, who is hearing a criminal case in .the District Court of Limassol, in which' the applicant is one of the accused, to decide whether or not he accepts certain legal' arguments which were put forward at the close of the 665 Trianlafj Hides P. In re Pantelidou

(1984)case for the prosecution by counsel for the applicant regarding admissibility of evidence. Also, the applicant seeks an order of certiorari quashing the alleged failure of the trial Judge to give a reasoned decision, at the close of the case for the prosecution, as to whether or 5 not he accepts the aforementioned arguments of counsel for the applicant. Furthermore, the applicant seeks an order of mandamus requiring the trial Judge to reserve as a question of law for the opinion of the Supreme Court, under section 148of the Criminal 10 Procedure Law, Cap. 155,the correctness of his alleged failure to pronounce on the aforesaid legal arguments, and an order of certiorari quashing his refusal lo reserve for the opinion of the Supreme Court such question of law. When the applicant wasgranted leave tofilethe present appli- |5 cation the relevant criminal proceedings were stayed by the order granting such leave, but it was made clear that counsel for the prosecution, as well as counsel for the other accused— Andreas Agathocleous—were at liberty to apply to this Court for any order that they might deem necessary in relation to 20 the stay of proceedings. At the time when the criminal proceedings were stayed by this Court there had been reached the stage at which the trial Judge had decided, under section 74(l)(c) of Cap, 155, to call upon both accused to make their defence and the co-accused 25 of the applicant (who is accused 1in the case) elected to make, and did make, an unsworn statement from the dock, whereas the applicant (who is accused 2 in the case) did not elect what course to adopt but obtained leave tofileher present application and, thus, secured a stay of the criminal proceedings against 30 her. Naturally, in view of thenature of thisapplication, itshearing, which eventually turned out to be quite lengthy, was concluded as expeditiously as it was feasible in the circumstances; and relatively soon after judgment had been reserved I had prepared 35 a draft of my judgment, but it was not delivered then because a most unfortunate.misunderstanding occurred due to which I was erroneously given the impression that it was not necessary 666 I C.L.R. In re Pantelidou TriantaljHides P. to deliver my judgment as the criminal proceedings concerned were to be discontinued for other reasons. Nothing happened, as the years went by, to free me from such misunderstanding, especially as none of the other parties 5 to the criminal case in question took any procedural step to expedite the delivery of my reserved judgment or to set aside the order staying the criminal proceedings, as they were perfectly entitled to do, particularly in view of the terms on which, as already stated, such proceedings had been stayed. Nor was 10 an application filed by them, after the judgment had remained reserved for more than six months, for any order that the Supreme Court might have deemed fit to make under the Civil Procedure (Amendment) Rules of Court, 1965. Then, recently, during a check by the Registry of this Court 15 of all pending applications for prerogative orders it was discovered that there was nothing in the file of this case indicating that it was no longer necessary to deliver the reserved judgment because the criminal proceedings in question were discontinued and the case was fixed for mention on the 18th June 1983 in 20 order, as was expected, to record formally the discontinuation of such proceedings. It was thus discovered that the information about the discon*inuance of the crimintl proceedings was erroneous and that it is still necessary to deliver the reserved judgment in this case. 25 As regards the regrettable delay that has been thus caused to thedetermination of thecriminal charges against the applicant and her co-accused I feel duty bound to mention that it might, depending on the further course and outcome of the criminal proceedings concerned, give rise to the issue of whether or not 30 there has occurred a violation of Article 30.2 of the Constitution. The said Article is closely similar, in this respect, to Article 6

(1)of the European Convention on Human Rights 1950. which,after its ratification bymeans ofthe European Convention 35 on Human Rights (Ratification) Law, 1962 (Law 39/62), is applicable in our Republic (see, inter alia, Policev. Georghiades,

(1983)2 C.L.R. 33, 38, 50). It is useful, therefore, to bear in mind, too, relevant case-law of the European Court of Human Rights(such as the Neumeister 667 Triantafyllides P. In re Pantelidou

(1984)and Wemhoff cases.decided on 29th June 1968,and theRingcisen case, decided on 16th July 1971) and of the European Commission of Human Rights (such as the cases of Huber v. Austria. Decisions and Reports, vol. 2, p. II, Hatti v. FederalRepublic of Germany, Decisions and Repor's, vol. 6, p. 22, and Haase 5 v. Federal Republic of Germany, Decisions and Reports, vol. 11, p. 78). What I have just stated hereinabove should not. in the least. be taken ar prejudging, in any way, whether or not there might be found that in this casethere exists a violation of Article 30.2 10 of the Constitution and Article 6

(1)of the European Convention on Human Rights. 1shall proceed, now, to deliver my reserved judgment in the present case: 1 shall deal, first, with the part of this application by means 15 of which there are sought orders of mandamus and certiorari regarding the refusal of the trial Judge to reserve a question of law, under section 148 of Cap. 155, for the opinion of the Supreme Court: Bearing in mind the principles that should guide the exercise of the discretionary powers of a trial Court 20 in reserving a question of law under the said section 148, on the application of an accused person, I am of the opinion that this is not a proper case in which to dictate to the trial Court, by means of prerogative orders of mandamus or certiorari, how to exercise such discretionary powers and, therefore, the 25 said orders cannot be made as applied for by the applicant (see, inter alia, in this respect, In re Conslantinou,to be reported in the

(1983)1 C.L.R.).* As regards the orders of mandamus and certiorari which are being sought in relation to the alleged failure of thetrial Judge 30 to give a reasoned decision on legal arguments of counsel for the applicant, at the close of the case for the the prosecution, it is useful to quote, first, the two complained of rulings of the trial Judge, as a result of which the present application has been filed. In rejecting the submissions of counsel for both accused that no prima facie case had been made out against them the trial Judge said the following: Now reported in

(1983)1 C.L.R.

1. 668 35 I C.L.R. 5 10 15 20 25 30 35 In re Pantelidou Triantafyllides P. "After the case for the Prosecution closed, advocates for both Accused submitted to the Court that the Prosecution did not prove a prima facie case against their clients and so they should beacquitted. Both advocates for the Accused and the Prosecuting Officer, addressed the Court in lengthy arguments. I had the opportunity to go through these arguments as well as the relevant parts of the evidence they commented upon, and without making any findings as to the credibility of any witness, I am of the opinion that both Accused should be called upon to make their defence on all the counts that they are charged except on counts Nos. 80, 195, and
2. Full reasons for the above will be given in the judgment". Then, after counsel for the applicant had complained that the above ruling was not duly reasoned the trial Judge went on to give a further ruling which reads as follows: "After a Ruling was given calling upon both Accused to make their defence on 33 out of 36counts. Counsel appearing for Accused 2 submitted that the Ruling was not in compliance with Article 30 of the Constitution in that it was not reasoned and he went on to say that if there is no expansion on the Ruling, he proposes to ask the Court io state the case to the Supreme Court. Having listened to what Defending Counsel argued. 1 understand that his complaint is that to some of his submissions, i.e. (i) that evidence against Accused No. I should not be evidence against Accused No. 2, (ii) Accused 2 should not becalled upon tomake her defence for cheques issued to the order of Kyprianides and signed by the complainant, or when she wasabroad, and (iii) that some counts were bad for duplicity, no explanation or reasoning, as he described it, was given. The ruling itself is very clear and the message conveyed isthat theadvocates' submissions werenot sustained bythe Court and that iswhy the Accused were called upon to make their defence. Moreover, 1 am of the opinion that such complaints can properly be raised by way of appeal if the. Accused are convicted and should not be dealt with at this stage 669 Triantafyllides P. In re Pantelidou

(1984)either by an explanation or interpretation of the Ruling. or by way.of question of law reserved for the opinion of the Supreme Court. In the case of The Republic v. Georghios Theocli Kalli (No. I), reported in

(1961)C.L.R. p. 266. at p. 286 it was 5 decided that interruptions in criminal cases are highly undesirable and such proceedings during the trial should be discouraged as tending to cause inconvenience, delay and embarrassment is the administration of criminal justice. 10 As regards the three counts on which the Accused were not called upon to make their defence, that creates no problem to the Accused as they have no obligation to make their defence on those counts, and so no further explanation is required. 15 For all the above reasons, the application is hereby refused and both Accused are called upon to defend themselves on the counts they were called upon in the Ruling". It is pertinent to quote, next, paragraphs (b) and (c) of subsection

(1)of section 74 of Cap. 155, which read as follows: 20 "(

1. b)at the close of the case for the prosecution, the accused or his advocate may submit that a prima facie case has not been made out against the accused sufficiently to require him to make a defence and, if the Court sustains the submission, it shall acquit the accused: 25 (
2. c)at the close of the case of the prosecution, if it appears to the Court that a prima facie caseismade out against the accused sufficiently to require him to make a defence, the Court shall call upon him for his defence and shall inform him that he may make a statement, 30 without being sworn, from the place where he then is, in which case he will not be liable to cross-examination or give evidence in the witness box, after being sworn as a witness, in which case he will be liable to cross-examination as a witness;" 35 It has been contended by counsel for the applicant that it was the duty of the trial Judge to give—at theclose of the case for the prosecution and in dealing with the submission that no 670 1 C.L.R. In re Pantelidou Triantafyllides P. prima facie case had been made out against the applicant—a reasoned decision regarding the admissible evidence on which herelied indecidingto call on theapplicant tomake her defence; and counsel for the applicant went on to argue that because 5 of the failure of the trial Judge to give such a decisionas regards theadmissible, at that stage, evidence the trial Judge has acted without jurisdiction in calling upon the applicant to make her defence; and it was contended further that, consequently, there has occurred an error of law which is apparent on the face of 10 the record. Also, counsel for the applicant has submitted that the ruling, by means of which the applicant was called upon to make her defence, was not "reasoned" as required by Article 30.2 of the Constitution. In deciding whether or not the said ruling is "reasoned"1 15 it is proper to look at it together with the subsequent ruling which was given by the trial Judge when it was complained by counsel for the applicant thai the Judge's first ruling was not duly reasoned. Iwould liketo point out. at thisstage,that I havesome doubts 20 as to whether the term "judgment" in the context of Article 30.2 of the Constitution can be construed as meaning anything else but a final judgment about the outcome of a particular case; and if only a final judgment is covered by the provisions of Article 30.2 it then follows that the aforementioned two 25 interim rulings need not have been reasoned. On the other hand, in the case of The Attorney-General of the Republic v. Enimerotis PublishingCo. Ltd.,

(1966)2 C.L.R. 25, 30, there is to be found a dictum of Vassiliades J., as he then was, to the effect that a decision of a trial Court concerning the adjournment 30 of the hearing of a criminal case, which obviously is not a final judgment, "must be duly reasoned, as required of all judicial decisions by Article 30.2 of the Constitution". I shall, therefore, proceed to examine, in the light of the above dictum, whether the two rulings in question are "reasoned" as required 35 by Article 30.2. All our case-law as regards what constitutes sufficient reasoning appears to relate tofinaljudgments; and it is useful to refer, in this respect, to the cases of Katsaronas v. The Police,

(1973)2 C.L.R. 17, 35, Petsas v. The Republic,

(1973)2 C.L.R. 84, 86, 40 Fournarisv. The Republic,

(1978)2 C.L.R. 28, 37, Neophytou 671 Triantafyllides P. In re Pantelidou

(1984)v. The Police,

(1981)2 C.L.R. 195, 198, Pioneer Candy Lid. v. Stelios Tryfon & Sons Ltd.,

(1981)1C.L.R. 540, 541,Papageorghiouv. HjiPieras,

(1981)1C.L.R. 560, 563 and Hambouv. Michael,

(1981)1 C.L.R. 618, 619. As it is to be derived from the above case-law the sufficiency 5 of reasoning depends largely on the circumstances of each particular case and, bearing in mind, inter alia, the interlocutory nature of the aforesaid two rulings, I am of the view that when ilicy arc read together they must be found to contain sufficient reasoning for the purpose for which they were given; 10 and, thus, I am not prepared to hold that, even if Article 30.2 is applicable to them, they are not "reasoned" in the sense of such Article. In relation to the aspect of the adequacy of the reasoning set out in the two rulings in question, as well as in connection 15 with the remaining complaints of the applicant—with which I am going to deal next in thisjudgment—it is, 1 think, essential tobear inmind what is theexact nature ofthe stage of a criminal trial to which paragraphs (b)and (c) of subsection

(1)of section 74 of Cap. 155 relate; and, in this respect, very useful guidance 20 is to be derived from the judgment in Azinas v. The Police,

(1981)2 C.L.R. 9, 52-57 (and see, too, Archbold on Pleading, Evidence and Practice in Criminal Cases, 41st ed., paras. 4-385 to 4-387, pp. 416-419, and Halsbury's Laws of England, 4th ed., vol. 11, para. 290, p. 167). 25 At this stage of a criminal trial the decision to be given by thetrial Court should not amount inany waytoa final pronouncement as regards the guilt or innocence of the accused (see, inter alia, The Attorney-General of the Republic v. Morphitis,

(1975)2 C.L.R. 138);unless, of course,it isfound that no prima 30 facie case has been made out against the accused sufficiently to require him to make a defence. It is obvious from his complained of rulings that the trial Judge went through the arguments advanced by counsel for the applicant, as well as, by the prosecuting officer, and examined 35 the relevant parts of the evidence that had been commented on by them; and then, without making any finding as to the credibility of any witness—as he, indeed, ought not to have made^-he reached the view that the applicant should be called 672 1 C.L.R. In re Pantelidou Triantaf}Hides P. upon to make her defence; and the fact that he did not call upon the applicant and her co-accused to defend themselves on three counts indicates that he examined the evidence against the two accused in relation to each one of the many counts that 5 were preferred against them. Consequently, 1 am of the opinion thtt the trial Judge, in acting as he has done at that particular stage of the trial, has not acted in excess of his jurisdiction, nor has he refused to exorcise hisjurisdiction, nor has heacted ina manner resulting 10 in an error of law which is apparent on the face of the record, and, therefore, I am not satisfied that tin's is a proper case in which to quash by means of an order of certiorari either or both of his two rulings concerned. In any event, this is not an instance which comes within the 15 category of cases in which certiorari issues as a matter of course "ex debito justitiae" (see, in this respect, Halsbury's Laws of England, 4th ed., vol. 1, paras. 160 to 162, pp. 156, 157), and as, therefore, the making of an order of certiorari would be discretionary I would -tot, in the exercise of my discretion, 20 after having taken into account all relevant factors, have been inclined to grant an order of certiorari in the present case even if there existed—(and in fact there does not exist)—a ground entitling me in law to do so. Also, on the basis of what I have already stated, 1 cannot see 25 any proper reason for making an order of mandamus. In any case the granting of the remedy of mandamus is discretionary (see Halsbury's Laws of England, 4th ed., vol. I, para. 91, p. 112) and I would not be prepared to grant such an order directing, in effect, the trial Judge to make, at thestageof calling 30 upon the applicant to make her defence, specific findings as regards admissibility of evidence or as regards any other matter on which the trial Judge did not have to pronounce for the purposes of the proper application of the provisions of section 74(l)(c) of Cap. 155. 35 For all the foregoing reasons the present application is dismissed, but without any order as to its costs. Applicationdismissedwithno order as to costs. 673