2 C.L.R. 1987 August 19 rTRlANTAFYLLIDES Ρ SAWIDES,LORIS JJ ) Y1ANNAK1SP ELLINAS, Appellant, ν T H E POLICE. Respondents (Cnminai Appeal No 4896) 5 Criminal procedure — Remandin custody application for— Taskoftnal Judge — Powers of Supreme Court to intervene with an order of remand — Non disclosureofdocumentstaken into consideration by tnalJudge — Constitutes a violation of the rule of naturaljustice *audiatur et alteram partem» — N o n production of suchdocuments — Hinders judicial scrutiny by this Court \0 The appellant was remanded in police custody for eight days pending police investigations into the offences of
(1)Conspiracy to kill
(2)Premeditated murder(triple) ItisapparentfromtherecordthatthetnalJudge dealing with the remand application read a set of documents presented to him bycounselappeanng forthe Police andthatthesedocuments(ι)were not disclosedto the defence (asaresult of theJudge's rulingon the objections of the Police to disclosure),and (n)were not properly produced 15 20 25 Held, allowing theappeal
(1)In dealingwith aremandapplicationthe tnal Judgemustevaluatethematenal beforehim andreachhisdecisionguidedby thepnnciples relevant tohisdiscretion He hastoapply therelevantstatutory provision which iss 24 of the Cnminai Procedure Law Cap 155which«has to be read subject to the relevant constitutional provisions, which are paragraphs 1.2(c)and6ofArticle 11 ofourConstitution» (vide Tsmdesv The Police
(1973)3 C L R 204 at ρ 206)
(2)The task of this Court is confined to determining whether the Judge exercised his discretionjudicially «This in turnentitlesthisCourt toexamine the pnnciples that guided the Judge in the exercise of his discretion and matterstakeninto consideration »
(3)In this case the rule of natural justice expressed by the maxim«audiatur etalteram partem»was flagrantly violated,by reason of thenon-disclosure of the said documentsto the defence 121 Ellinas v. Police
(1987)
(4)Moreover, the non-production of such documents hinders judicial scrutiny by this Court. Appealallowed Cast- •referred toTsmdesv. ThePolice
(1973)3 C.L R 204, 5 Hasipv. ThePolice,1964 C.L R 48; Papacleovoulou &Another v. ThePolice
(1974)2 C L.R 55. Stamatis& Another ν V:e Police(\983) 2C LR 107Economies & Another ν The Police
(1983)2C L R 301 Appeal against remand order. 10 Appeal by Yiannakis P. Ellinas against the remand order of the DistrictCourtof Limassol (Eleftheriou, D.J.)made on the 14th August, 1987 whereby appellantwas remandedinPolice custody for eight days pending Police investigation into the offences of conspiracy tokilland premeditated murder. 15 G. Cacoyiannis with Chr.Triantafyllides andP. Mouaimis, for the appellant. GI.HjiPetrou,for the respondents. TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by LorisJ 20 LORIS J.: The present appeal is directed against the remand Order of the District Court of Limassol, dated 14.8.87, whereby the appellant was remanded in police custody for eight days pending police investigations intothe offences of: (i)Conspiracyto kill (II)Premeditated murder (triple). 25 The appellant was initially arrested in connection with the aforesaid offences on 10.7.87 and he was remanded in Police custody wherefrom he was released on 16.7.87. Hewas arrested again on 20 7.87 and he was remanded in police custody for anothertwo consecutive periods of 8 days each. The remand Order of 14.8.87, which is being impugned by means of the present appeal, is the fourth remand Order against the appellant 122 30 2C.L.R. Elllnasv. Police LorisJ. The decision for the remand of a suspect in police custody for purposes of investigation, as well as its renewal, rests with the Judgedealingwiththeremandapplication,whomustevaluatethe material before him and reach his decision guided by the 5 principles relevant tohisdiscretion. He has to apply the relevant statutory provision which iss. 24 of the Criminal Procedure Law Cap. 155 which «has to be read subject to the relevant constitutional provisions, which are paragraphs 1, 2(c) and 6 of Article 11of our Constitution» (vide Tsirides v. The Police
(1973)10 3C.L.R. 204atp.206),andappliedinthelightoftheauthoritative pronouncements on appeal in a number of cases on this topic: (vide inter alios: VedatAhmet Hasip v. The Police, 1964 C.L.R. 48, Tsirides v. The Police(Supra),Papacleovoulou &Another v. ThePolice
(1974)2C.L.R.55,Stamataris&Another v.ThePolice 15
(1983)2C.L.R. 107 Economides &Another v.ThePolice
(1983)2 C.L.R. 301). The task ofthisCourt issummarised inStamataris'case (supra) atp. I l l as follows: 20 25 «An appeal against a remand order is not by way of rehearing.Ourjurisdiction isconfined todeterminingwhether the Judge exercised his discretion judicially. (See, Yiannakis Papacleovoulou and Another v. The Police
(1974)3 C.L.R 55). This, in turn entitles the Supreme Court to examine the principles that guided the Judge in the exercise of his discretion and matterstaken into consideration..» The main complaint of the appellant, in the appeal under consideration, is that the learned trial Judge dealing with the remand application took into consideration material i.e. a set of documents in the possession of the police which were never 30 disclosed tothe defence inspite ofthe factthatsamewere eagerly sought by counsel appearing for the suspect at the hearing, who wentasfaraseliminatinghisrequesttotheirperusalbyhimgiving atthesametimeasoleundertakingthatthecontentshereof would not be disclosed tohisclient. 35 The learned trial judge without admitting the documents in question confined himself in reading a set of these documents rulingontheobjection ofthepoliceagainsttheavailabilityofsame tothe defence even for inspection purposes. Leading counsel for the appellant forcefully submitted that the 40 n o n disclosure of the documents aforesaid, to the defence 123 LorisJ. Elllnas v. Police
(1987)rendered the task of opposing the police application for remand impossible as the defence could not check either-the reliabilityof the source from which the documents in question were emanating or whether in fact the contents of such documents could support areasonable suspicion against thesuspect. 5 Itisapparent from the record before usthat the learned Judge dealing with theremand application (a)Read a setof documents presented to him by counsel appearing for the Police and that these documents (i)were not disclosed to the defence (asaresult of the Judge's ruling on the objections of the Police for non 10 disclosure) (ii)were not properly produced. (b)Took into consideration the contents of the aforesaid setof documents in reaching his decision to grant the remand Order underappeal;thisisclearlystatedatpageseventeen oftherecord. Weholdtheviewthatinthecircumstancesthenondisclosureof 15 the set of documents aforesaid to the defence violated flagrantly the rule of natural justice expressed by the maxim «audiatur et alteram partem»; the defence not being aware of the nature and contents of the documents, was prevented from attacking their reliability and more so their contents. On the otherhand the non- 20 production of the set of documents in question resulted in the absence ofsuchsetof documents from therecordbefore us.Such an absence hinders ourjudicial scrutiny abosutely, as we do not know what it is all about. It istrue that a Court entertaining an application for remand need not examine the probative value of 25 the evidence butitisbound toexaminethereliabilityofthesource from whichsuchevidence emanates(videEconomides & Another v. The Police (supra); and as already stated above itiswithin our province to examine the principles that guided the Judge in the exercise of his discretion and matters taken into consideration. 30 And it is obvious that in the absence of any record we cannot exercise any sort of judicial scrutiny on the remand order in question in view of the fact that the Judge who gave the remand Order took into consideration the aforesaid set of documents, which are not before us,in reaching atthe sub-judice decision. 35 For the above reasons thisappeal isallowed and the remand order appealed from isherebyset aside. Appeal allowed. 124