(1987)1987January26 [TRIANTAFYLLIDES Ρ LORIS&STYUANIDES,JJ ] THEATTORNEY—GENERAL OF THEREPUBLIC, Appellant, ν ANDREAS PAVLOU PIERIS, Respondent (Cnmmal Appeal No 4765) Stealing by agent—The Cnmmal Code.Cap 154secuon270(b)—The saidsection creates an offence,te theoffenceofstealingby agent—The relevant charge need not refer toanyother sectionoftheLaw Cnmmal procedure—Alteration ofcharge unders 84
(4)ofthe Cnmmal Procedure Law, Cap 155—Non-attendance of a prosecution witness, if required, for ** further crossexamination—Such non-attendance cannot prejudice the accused—It cannot butbetakenagainstthe prosecution The respondent was acquittedofa charge ofstealing by agent,contraryto section270(b)ofCap 154,onthegroundthatthesaidsectiondoesnotcreate an offence,butsimply empowers the Court to impose more severe sentence than the one imposed for ordinary stealing 10 It should benoted that the tnal Judge considered the question whether to orderan amendmentofthe charge, butdecidednottodoso,because ofa risk that the complainant, who livesabroad, would notattendandgive evidence, a fact, which «would prejudicially affectthe accused inhis defence» 15 As aresult the Attorney-General filedthe present appeal Held, allowing the appeal
(1)Itisclear fromthecase-lawofthisCourt that s270(b) creates an offence, namely the offence of stealing by agent The reference of any other section m thestatement of the offence fora charge under the saidsection isnot necessary 20
(2)Itisnotnecessary todeterminewhether thetnalJudgenghtlyor wrongly exercised his discretion in relation in the question of amendment butthis Court is constrained to say that the nonattendance of a witness forthe prosecution if required after alteration under s84
(4)of the Criminal Procedure Law, Cap 155,forfurthercross examinatio.. cannotprejudicethe 2 5 accused as such failure cannot butbe taken against the prosecution Appeal allowed Retrial ordered 44 2C U B . Attorney-General v. Pleris Casesreferredto: Soteriouv. TheRepublic, 1962C.L.R. 188; lacovouandOthersv.TheRepublic
(1976)2C.L.R. 114, AzmasandAnother v.ThePolice
(1981)2C.L R.9, 5 Sawa *Pambos»v.ThePolice
(1986)2C.L.R.30, Rossidesv.TheRepublic
(1983)2C.L R. 391. Appeal against acquittal. Appeal by the Attorney-General of the Republic against the judgment of the District Court of Limassol (Artemis,S.D.J.)given 10 on the 3rd July, 1986 (Criminal Case No. 917/86) whereby respondent was acquitted of the offence of stealing by agent contrary tosection 270(
- b)ofthe Criminal Code, Cap.154. A.M. Angelides, Senior Counsel of the Republic, for the appellant. 15 Chr.Pourgourides, for the respondent. Cur.adv. vult TRIANTAFYLLIDES, P.: The judgment of the Court will be delivered byMr.Justice Stylianides. STYUANIDES'J.:this appeaTtakerTbytheAttorney-General is 20 directed against the acquittal of the accused byaDistrictJudgeof Limassol. The accused wascharged withthe offence ofstealingbyagent, contrarytosection 270(
- b)oftheCriminal Code,Cap 154. Sixwitnessesfortheprosecution gave evidencebefore thetrial 25 Court. Atthe close of the case for the prosecution learned counsel for the defence submitted under section 74(l)(
- b)that a prima facie case had not been made out against the accused sufficiently to require him tomakea defence. 30 The prosecutor addressed theCourttothe contrary. The trial Judge ruled that section 270(b), under which the accused was charged, does not create an offence; it only 45 StylianidesJ. Attorney-General v.Pieris
(1987)enumerates cases describing the stolen property which, when existing, empower the Court toimpose more severe punishment than the one imposed for ordinary stealing. After referring to section 270(c), he expressed the opinion that the accused should becharged under othersectionsoftheCriminalCode;onhisown 5 motion, he invited argument whether the Court should proceed and amend the charge-sheet in view of the fact that the complainant is resident abroad and she might be required to attend the Court again for this trial for further cross-examination. After hearing addresses on the issue raised, the trial Judge 10 delivered judgment whereby the accused was acquitted. Thisjudgmentstartsasfollows:«Inthepreviousinterimdecision the Court decided that the case cannot proceed and the accused to be called upon to make his defene on the charge-sheet, as it stands, unless it is amended». He decided not to «order 15 amendment of the charge-sheet» as the accused would be prejudiced by the fact that the complainant lives abroad and notwithstanding the statement by the officer appearing for the prosecution that everything would be done to secure her presence, if requested. If she did not attend, «this would 20 prejudicially affect the accused in his defence» and thereafter proceeded and acquitted the accused. The appeal isfounded on two grounds:(a)ThattheCourterred infindingthats.270(b)doesnotcreate an offence; and, 25 (b)The Court wrongly decided that he could not have amended the count. Section 270 comes under Part 6 of the Criminal Code, Cap.154, «Offences Relating to Property», and particularly under subhead «Stealing». Section 255defines «stealing».Thefirstandmaterialpartforthis case readsas follows:«
(1)Aperson stealswho,withouttheconsentofthe owner, fraudulently and without a claim ofrightmade in good faith, takes and carries awayanything capable of beingstolen with 35 intent, at the time of such taking, permanently todeprive the owner thereof». 46 30 2 C.L.R. Attorney-Generalv. Pieris Stylianldes J. Itisclear from thecase-law of thisCourtthats 270(b) createsan offence, theoffence of stealing by agent, and thereference of any othersection inthestatementof theoffence for acharge underthis subsection is not necessary - (Sotenou ν The Republic, 1962 5 C L R 188.atpp 194-195) In Michalakis Andreou lacovou and Others ν The Republic,
(1976)2 C L R 114, at ρ 122, Tnantafyllides, Ρ , said - 10 15 20 25 30 35 «In the first place, it is quite clear, on the basis of previous decisions of this Court,one of which isthatinSotenou ν The Republic, 1962 C L R 188,
- that section 268 is not merely a punishment prescribing section, but one creating a separate offence, inthis respect VassiliadesJ , as hethen was, said in the Sotenou case the following (atpp 194, 195) 'As regards thefirst part of thesubmission, totheeffect that sections 262 and 267 λ our Code, merely provide for punishment, one may observe at once, that both sections refer totheoffence of stealing defined insection 255 Butthat cannot mean that without the definition-section, the offence of stealing is notprovided for Reading section
- or section 267 in its context, one would only have toattachameaning tothewords 'any person who steals' in the former section, or the corresponding expressions in the latter and one would have both offence and punishment in the section And surely the Courts applying thelaw codified intheCyprus CriminalCode, would be able togiveameaning tothesewords orexpressions, even without section 255 Once, however, section 255 is there opening the part of the Code covering Offences Relating to Property', as a definition-section, onedoes nothave tolook for themeaning, the Court applying the Code must give to these words and expressions, themeaning provided for themoramplified and settled, inthe definition-section ' The opening words in sections 267, 268 and 269 'If the offender is' m the context where these sections occur, clearly mean in my view -Ifthe person who steals within the meaning of section 255, isaperson employed etc - Readin 47 StyllanidesJ. Attorney-General v.Pierfe
(1987)thisway,each of thesesectionsfully coverstheoffence stated inthemargin'». InAndreasAzinasandAnother v.ThePolice,
(1981)2C.L.R.9, Hadjianastassiou, J., said atp.70:«... the section which creates the offence, in the present 5 case, is section 270(b), and therefore, the non-reference to section 257, and even ifit wasnecessary forthe proof of the present case, it was not necessary its reference in the statement of the offence.» On a submission of «no case» by the defence, pursuant to 10 Section 74(l)(b),thetrialCourtmustdecidewhetheraprima facie case hasbeen made outagainsttheaccused sufficiently torequire him to make hisdefence -(CharalambosSawa «Pambos» v. The Police,
(1986)2 C.L.R.30). The trialJudge, havingwrongly decided thats.270(b)does not 15 create an offence, indulged in considering whether or not to exercise his power for alteration of a defective charge. He departed from the proper course due tohismisdirection asto the law. Thereafter he followed the wrong path. The judgment is tainted and cannot survive. 20 Weneed notdetermine whetherherightlyorwrongly exercised hisdiscretion notto proceed to amendment ofthe charge, asitis unnecessary for the purposes of thisappeal. We are constrained, however, tosaythatthenon-attendance ofaprosecution witness, if required, after alteration under s.84
(4)for further cross- 25 examination with reference to such alteration -(Rossides v. The Republic,
(1983)2 C.L.R.391) -cannot prejudice the accused as the failure of the prosecution to secure the attendance of such a witnesscould notbut betaken againsttheprosecution andnotthe accused. 30 Forthe foregoing reasonsthejudgmentofacquittalissetaside. Anew trialofthe accused isordered before another Judge. Appeal allowed. New trialordered. 48