clr/1984/1984_2_5.pdf

(2)of the Courts of Justice Law, I960 (Law 14/60) and section 3 of the Courts of Justice (Tempoiary Piovisions) Law, 1974 (Law 43/74) By means of a charge-sheetwhich was filed on the 31si May, 1983, at the District Court of Larnaca the two appellants weie charged on two counts for abduction, two for rape and one for attempt to commit rape On the same date the prosecuting officerfiledtheconsent* of the Attorney-General of the Republic, under section 3(

1. a)of the Criminal Procedure {TemporaryPro* The consent is quoted at pp 9-10 post. 5 Yerakas and Another v. Police (19S4) visions) Law, 1974 (Law 42/74) for dispensing with the holding of a preliminary inquiry. Subsequemly this case was dealt with by a District Judge the Attorney-General having filed a consent under section 155(
2. b)of Cap. 155, and both appellants were convicted on the counts of abduction and rape and appel5 lant 2 on a count of indecent assault. Upon appeal against conviction counsel for theappellants contended: (
3. a)That there did not exist the consent of the AttorneyGeneial which is required to be given under section ]Q 3(
4. a)of Law 42/74 for the purpose of dispensing with the holding of a preliminary inquiry because the consent was given on a date prior to the filing of the criminal caseand ofthe framing ofthe relevant charges and because the case number, the date and the district 15 in which the case was to be filed, as well as the space for the description of the charges were left blank and that there was only a mere reference that he consented to the non holding of a preliminary inquiry in respect of the case filed against the two appellants. 20 (
5. b)That the two appellants were committed by the Judge to the Assize Court sitting in the District Court of Larnaca at the time which, in fact, had been sitting in that district since the 23rd May and tliat this was in violation of section 93(i)* of the Criminal Procedure Law, Cap. 155. 25 (
6. c)That the trial Court failed to try the question of its jurisdiction to deal with the case. Regarding (
7. c)above the trial Court dealt with the question of jurisdiction though raised after the commencement of the hearing and concluded that he could examine same at that stage. On the substance of the objection the trial Judge held that Section 93(
8. i)provides as follows: "Where a Judge holds a preliminary inquiry, the following provisions shall apply: the Judge shall commit him for trial by the Assize Court next sitting in the district in which the offence is alleged to have beencommitted, orwiththeconsent oftheaccused and the Attorney -General to an Assize Court then in session in such district ". 6 39 2 C.L.R. 5 10 15 Yerakas and Another v. Police having in mind the provisions of section 23

(2)of the Courts of Justice Law, I960 (Law No. 14 of 1960) and the provisions of section 3 of the Courts of justice (Temporary Provisions) Law 1974,(Law No.43of 1974),aswell asthe contents ofthe relevant charges of abduclion and rape, where for the offence of rape it was expressly mentioned that it took place in the area of Tzionia near the holy Monastery of Macheras, in the Districts of Larnaca-Nicosia, he had jurisdiction to proceed with the trial of the case. Held,(I) that no particular form is prescribed for the consent given under the provisions of s,3(

1. a)of Law 42/74; that it can be sufficient if from the circumstances it can be inferred that such consent was given in respect of the offences appearing on the charge-sheet of the criminal case in which same is filed; and that the fact that it bore a date prior to the signing of the charge-sheet and its filing does not change the position as there is nothing on record to suggest that this consent was not given in respect of the charges which appear on the charge-sheet in question; accordingly contention (
2. a)must fail. 20

(2)That the provisions of section 93(

1. i)of Cap. 155 come into play only where apreliminary inquiry is"held" and inthe present case no preliminary inquiry was held, as the consent of the Attorney-General was given for the purpose of dispensing with holding one; accordingly contention (
2. b)must fail. 25

(3)That the trial Court had jurisdiction to try the case (see section 23

(2)of the Courts of Justice Law, 1960 (Law 14/60) and sect'on 3 of the Courts of Justice (Temporary Provisions) Law, 1974 (Law 43/1974) ); that further the trial Judge rightly concluded that he could examine the question of jurisdiction even though it was raised after the commencement of the trial. Appeals dismissed. Cases referred to: 30 35 In re Economides

(1983)1 C.L.R. 933; R. v. Kouloumbrides, 8 C.L.R. 65; R. v. Rets and Others, 12 C.L.R. 8; Mouyios and Others v. Police

(1974)2 C.L.R. 23. Appeal against conviction. Appeal against conviction by Antonis Charalambous Yerakas and Another who were convicted on the 25th July, 1983 at the 7 Yerakas and Another *. Police

(1984)District Court of Larnaca (Criminal Case No 4592/83) on two counts of the offence of abduction contrary to sections 148 and 20 of the Criminal Code, Cap. 154, on one count each ot the offence of rape contrary to sections 144 and 145 of the Criminal Code, Cap. 154 and accused 2 on one count of the 5 offence of indecent assault contrary to sections 151 and 35 of the Criminal Code, Cap. 154and were sentenced by Ehadcs D J as follows; Accused 1 to one year's imprisonment on counts I and 2 and to three years' imprisonment on count

1. accused 2 to one year's imprisonment on counts I and 2, to 10 two years*imprisonment on count 4 and nine months* imprisonment on count 5, the sentences to run concurrently A Mathtkobnis, for the appellants. CI Antontades, Senior Counsel of the Republic, for the respondents A Loizou J. gave the following judgment of the Couit These two appeals which have been heard together are against the conviction of the two appellants in respect of a number ot offences which were, one of abduction of Anne Kristine Badsvic, another for abduction of Agnes Kristine Wile, both of Noiway 20 contrary to sections 148 and 20of the CriminalCode,Cap. 154, thethird foi therapeofthefirst complainant,contrary to sections 144and 145of the Code, and thefourth, one of indecent assault in respect of which only appellant 2 was convicted Their appeals against the sentence imposed on them in respect 25 of these two offences were withdrawn at the outset of the proceedings and their counsel has confined his argument to three grounds of Law only with which we shall deal in due course The first ground is that there did not exist the consent of the Attorney-General which is required to be given under the pro- 30 visions of the Criminal Procedure (Temporary Provisions) Law, 1974 (Law No 42 of 1974), for the purpose of dispensing with the holding of a preliminary inquiry regarding the offences in question and/or the consent filed was invalid and/or nonexisting as it was given on a date prior to the filing of the Criminal 35 Case No 4592/83 in the District Court of Larnaca and of the framing of the relevant charges against the two appellants The facts relevant to this issue are these. The two appellants who had been remanded in custody for police investigations into a number of offences in respect of which they ultimately 40 8 1 2 C.L.R. 5 10 i5 20 25 30 Yerakas and Another \. Police Λ. Loizou J . stood for trial, were brought up before a Judge of the District Court of Larnaca and the aforesaid case was filed on the 31st May, 1983 having been signed on behalf of the Divisional PoliceCommander of Larnacaand with theapproval of a Judge. both done on the same date. The charge-sheet contained five counts, two for abduction, two for rape and one for attempt to commit rape against appellant
2. The charges were read over and explained to them by the Judge who also explained to them the natureof the proceedings. As the record of the Court goes in respect of that date the pro­ secuting officer filed then the written consent of the AttorneyGeneral (exhibit A), for dispensing with the holding of preli­ minary inquiry. Thereafter the prosecuting officer filed the summary of the statements of the witnesses for the prosecution (exhibit B) and informed the Judge that copies of same had been given to the counsel of the two appellants who was at the time appearing for them. There was a short break and the Judge ruled that the holding of a preliminary inquiry was not necessary in thatcase having in mindtheconsentof theAttorneyGeneralfiled and also the contents of the statements. He went on to say that in the circumstances as disclosed by those state­ ments there were sufficient reasons for the committal of the two appellants for trial before the Assize Court, at that time sitting in Larnaca, and directed that the two appellants should appear before it on the following day, that is the 1st June,
3. There followed an application on behalf of thetwo appellantsthatthey should be released on bail, which was opposed by the prosecut­ ing officer. The Judge after hearing arguments from both sides released the two appellants on bail but imposed certain conditions with which we are not concerned here. The said consent which was in cyclostyled form with empty spaces, some duly filled in and some not, reads: "CRIMINAL PROCEDURE (TEMPORARY PROVISIONSLAW OF 1974) 35 CONSENTOF THE ATTORNEYGENERAL OFTHEREPUBLIC BY VIRTUE OF THE PROVISIONSOFSECTION 3(a) In the exercise of the powers given to me by virtue of the provisions of Section 3(a) of the Criminal Procedure 9 Λ. Loizoa J. Yerakas and Another v. Police

(1984)(Temporary Provisions) Law 1974, hereby give"my consent that it is not necessary to hold a preliminary inquiry in Criminal Case Number filed in the District Court . . against Antoni Charalambous Yeraka of Panayia, Paphou and Chara- 5 lambous Andreou Keveze from Milikouri, now at Ypsona ._ . Accused. Nicosia, the 30th May, 1983. (Sgd.) Attorney-General of the Republic. District: Larnaca Station: Larnaca Register of Crimes: 10 162/83." Subsequently, the Attorney-General of the Republic filed, under section 115(

1. b)of the Criminal Procedure Law, Cap. 155, his consent with a direction that the said case "be tried and 15 determined by a District Judge or a Senior District Judge, or the President of the District Court of Larnaca, notwithstanding that the offences aforesaid could not otherwise be triable by a Di­ strict Judge." As a result of this second consent, the case was heard and 20 determined by a District Judge of the District Court of Larnaca. Counsel for the appellant has pointed out that in the consent of the Attorney-General hereinabove set out, given under section 3(
2. a)of Law No.42/74, the case number, thedate and the district in which the case was to be filed, as well as the space for the 25 description of the charges were left blank and that there was only a mere reference that he consented to the non holding of a preliminary inquiry in respect of the case filed against the two appellants. Section 3 of Law 42/74, as it then was before its amendment by Law 44/83, reads as follows:- 30 "During the continuance in force of the Courts of Justice (Temporary Provisions) Law, 1974, and notwithstanding the provisions of section 92 of the Criminal Procedure Law, in cases of offences created by the Criminal Code or any 35 other Law in force, with theexception of offences punishable with the death penalty, if 10 2 C.L.R. Yerakas and Another \. Police A. Loizou J. (
3. 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 5 (
4. b)the 'substance' (now 'copy' by virtue of Law 44/83) of the statement of each prosecution witness, whom the prosecution intends to call, is served in advance on the accused or his advocate, the Court has power to commit for trial, without a preliminary inquiry, any accused person". 10 As clearly seen from the text, no particular form is prescribed for the consent given under these provisions and to our mind it can be sufficient iffrom the circumstances it can be inferred that such consent was given in respect of the offences appearing on the charge-sheet of the criminal case in which* same is.filed. 15 We have considered the arguments of counsel and we have come to the conclusion that in the light of the circumstances under which this consent was filed, same could not but have been given in respect of the charges set out in the charge-sheet and it was in that sense that it was filed and accepted by the 20 Judge, hence the non holding of a prehminary inquiry and the committal of the two appellants for trial without it. The fact that it bore a date prior to the signingof thecharge-sheet andits filing does not change the position as there is nothing on record to suggest that this consent was not given in respect of the 25 charges which appear on the charge-sheet in question. On the contrary it would only be material to be given prior to the filing of the charge and when the Attorney-General's advice is normally sought. We find, therefore, no merit in this ground. 30 The second ground isthat the two appellants were committed by the Judge to the Assize Court sitting in the District Court of Larnaca at the time which, in fact, had been sitting in that district since the 23rd May and that this was in violation of section 93(
5. i)of the Criminal Procedure Law, Cap. 155, which 35 provides:-" the Judge shall commit him for trial by the Assize Court next sitting in the district in which the offence is alleged to have been committed, or with the consent of the 11 \. Loizou .). Yerakas and Another *. Police

(1984)accused and the Attorney-General to an Assize Court then in session in such district As it has been rightly pointed out this provision is a paragraph of section 93 which in its opening part reads: "Where a Judge holds a preliminary inquiry, the following provisions shall apply". The question, therefore, is whether ail the provisions or any of them, apply in the case where no preliminary inquiry is held. 5 Giving to the said words "where a Judge holds a preliminary inquiry" their ordinary and literary meaning, one cannot escape 10 from the fact that the various provisions of thissection, including para, (i), come into play only where a preliminary inquiry is "held" and in the present case no preliminary inquiry was held. as theconsent of the Attorney-Genera! was given for the purpose of dispensing with holding one. Such approach is also to be 15 found in the Applications by PhaedonG. Economides& Others, for an Order of Certiorari delivered by Triantafyllides, P., on 21st June 1983,* not yet reported, likewiseconcluded that the provisions of sections 93(h) and 94 of Cap. 155are only applicable if there is held a preliminary inquiry under section 92 of 20 Cap. 155. This ground, therefore, also fails. The last ground turns on the question of the jurisdiction of the trial Court. This wasanissuewhich wasraisedin the course of the trial and not by way of special plea under section 69

(1)of 25 the Criminal Procedure Law. The learned trial Judge dealt with the issue having first examined whether an objection to the jurisdiction ought to have been raised before the commencement of the hearing or not and referred in that respect to the case of R. v. Kouloumbrides, 8 C.L.R. p. 65; R. v. Reis and others, 12 30 C.L.R. p. 8 and on the basis of these authorities concluded that he could examine same at that stage. On the substance of the objection he said that having in mind the provisions of section 23

(2)of the Courts of Justice Law, 1960(Law No. 14 of 1960) and the provisions of section 3of the Courts of Justice (Tempo- 35 rary Provisions) Law 1974,(Law No. 42 of 1974), as well as the contents of the relevant charges of abduction and rape, where for the offence of rape it isexpressly mentioned that ittook place in the area of Tzionia near the holy Monastery of Macheras,in * Reported in

(1983)1 C.L.R. 933. 12 2 C.I..R. Yerakas and Another \. Police A. Lmzou J. the District of Nicosia, he concluded that he had jurisdiction to proceed with the trial of the case. Section 23

(2)of Law 14of I960provides that, wherean offence iscommitted on the boundary of two or more districts or within 5 a mile of the boundary or iscommitted partly in one district and partly in another or other districts, such offence may be tried by the District Court of either or any such district as if it had been wholly committed in the district in which it is tried. For ihe purposes of this subsection 'district* includes the Sovereign 10 Base Areas. Section 3of Law43of 1974,providesthat during the abnormal situation and irrespective of the provisions of section 23

(2)of the Courts of Justice Laws, 1960-1972, every District Court has jurisdiction to try, in accordance with the provisions of !5 section 24 any offence committed in any district of Cyprus. We endorse the approach of the learned trial Judge and we feel that the position is aptly summed up in the Criminal Procedure in Cyprus, by A. N. Loizou and G. M. Pikis at p. 91. where it is stated: 20 25 30 "A plea to jurisdiction must be made before the accused pleads to the charge. (R. v.Alt Ahmet Reisand Others, 12 C.L.R. 8). Ifthe accusedpleadstothechargeand it subsequentlyappears that thejurisdiction ofthe Court is questioned, then theproper course to follow isfor the Judge to allow the plea to be withdrawn, enter a special plea and proceed to try the question of jurisdiction preliminary to the main issue. Failure on the part of an interested party to object to jurisdiction, where none is possessed by the Court of trial, does not validate the proceedings and objection to jurisdiction may be taken for the first time on appeal. The question ofjurisdiction isa matter of substance going to the root of the proceedings and may be raised ex proprio motu -by the Court. Where jurisdiction is wrongly assumed by 13 Loizou J. Yerakas and Another v. Police (19&4> the Court, the proceedings are a nullity. (Mouyios and Others v. The Police

(1974)2 C.L.R. p. 23"). This ground therefore also fails. For all the above reasons these appeals are dismissed. Appeals dismissed. 14 5