(1987)1987February 20 (TRIANTAFYLLIDES Ρ SAW1DES STYLIANIDES JJI GEORGHIOSCHR LEONIDOU, Appellant, ν THE POLICE, Respondent (Criminal Appeal No 4846) Cnmmal Procedure—Amending thechargeorinformation byadding anew count thereto — The Cnmmal Procedure Law, Cap 155— Sections 83
(1), 84 and 85
(1)and
(4)— Acceptance by tnal Court of submission that prosecution failed to make out apnma faciecaseand direction, without first seeking the viewsofcounsel for theparties thatanew count beadded — In doing sotnal 5 Court relied on section 85
(1)and
(4)and not on section 83
(1)— As at that stagethe tnalhad not been concluded, theonly sectionthatcould be invoked wassection 83
(1)— The wrong application of thelaw resulted in miscamage ofjushce astheaccusedwasdepnved oftheadvantagesenvisaged bysection 84, which would have been applicable, if the tnal Court had applied section \0 83
(1)— Thenecessaryprerequisites oftheapplication ofsection85
(4)— The aforesaid failure to seek the views of counsel constituted a non matenal irregulanty The appellant was onginally chargedwith rape contrarytosections 144 and 145 of the Cnmmal Code, Cap 154 After the close of the case for the 1 5 prosecution, counsel for the accused submitted that no pnma facie case was made out against theaccused The tnal Court acceptedthesubmission,butas in itsopinion theevidence disclosedapnma faciecaseforassault occasioning actual bodily harm contrary to section 243 of Cap 154, it directed, without first obtaining the views of defending counsel, the amendment of the charge 2 0 bytheadditionofasecondcountchargingthesaidoffenceofassault Indoing so the tnal Court relied on section 85
(1)and
(4)of the Civil Procedure Law, Cap 155 andnotsection83and forthis reason theCourt refusedtoapply the procedure contemplated by section 84 and turned down an application by counsel fortheaccusedforrecallingofprosecutionwitnessesforfurthercross- 2 5 examination The groundsgivenbythetnal Court fornotapplying section 83 and applying section 85
(1)and
(4)are that section 83 is not applicable because the onginal charge was not defective, but the evidence was simply insufficient toestablish the commission of the cnme by the accused,and that 96 2 C.L.R. Leonldou v. Police once theruling onthesubmission of nopnmafacie case was infavour of the accused, the case must be considered as concluded and, therefore, the provisions of s 85 hadtobe followed 5 10 15 20 The accused was eventually found guilty on the new count Hence the presentappeal Held,allowing the appeal
(1)An indictmentis defective notonly whenit isbad ontheface of it,butalso (i)When itdoesnotaccordwiththeevidence before the committing magistrates, either because of inaccuracies or deficiencies intheindictmentorbecausetheindictmentchargesoffences not disclosed in that evidence or fails to charge an offence which is disclosed therein, (n)When for such reasonsitdoesnotaccordwiththeevidencegiven at the tnal R ν Hall[1968152 Cr App R 528, R ν Johaland Ram [1972] 56 Cr App R 348 (Apassagefrom Archbold's CnminalPleading,Evidence and Practice,40th Ed ρ 52 para 53adopted)
(2)Itwas advisable for thetnal Courttoseek theviewsof counsel for the parties before adding thenew count,but thefailure toseek suchviewsdoes not amount to a matenal irregulanty (Pouns and Others ν The Republic
(1983)2CLR 148atp 161,perTnantafyllides, Ρ )
(3)Therequisites which have tobe established before section85
(4)canbe applied are (
- a)Itmust be established by evidence thattheaccused has committedan offence notcontainedinthe chargeor information (
- b)The accused cannot be convicted without amending the charge or information 25 30 35 40 (
- c)Theaccused mustnotuponhisconviction onthenew offence be liable to a greater punishment than if he were convicted on the charge or information as itstood,in otherwords thatthepunishmentprovided by law for theaddedoffence mustnotexceed thatof the onginal offence (
- d)That the accused would not be prejudiced by the amendmentin his defence
(4)Itis abundantly clear from the above authonhesthat theprovisions of section 83 come into operation at any stage of the proceedings and in any casebefore theconclusionofthetnal(videPounscase(supra)) Whenthetnal is concludedandtheCourthasevaluatedtheevidencebefore it,comingboth from the prosecution and the defence, » may, at the stage of making its findings on the facts, if it comes to the conclusion that part only of the chargeorinformationhasbeen proved,andthepartsoproved constitutesan offence, convict the accused, withoutaltenng thecharge or information,of the offence which he isproved tohave committed, undersub-section
(1)of section 85, or if the Courtis of the opinion that ithas been established by 97 Leonidou v. Police
(1987)evidence that the accused has committed an offence or offences not contained in the charge or information it may direct that a new count be added tothecharge orinformation charging theaccused withsuchoffence or offences andtheCourtmaygiveitsjudgment thereupon asif thesaidcount orcountshadformed partof theonginalcharge orinformation inaccordance with subsection
(4)of section 85 and subject totherequisites set outtherein
(5)Inthepresentcase thetnalhadnotbeen concludedandtheonlysection which couldbe invoked atthatstageof theproceedings was section83
(1)and not section 85
(4)which is applicable in cases where the tnal has been concluded The adoption of the procedure under section 85
(1)and
(4)depnved the appellant of the advantages of section 84 and inparticular sub section
(4)of section 84 The wrong application of the law has led to substantia! miscarriage of justice 5 10 Appealallowed Conviction quashed Casesreferred to Chrysostomou ν The Police 2 4 C L R 192, Foum and Othersν TheRepublic
(1980)2 CLR 152 Panayidesand Othersν ThePolice
(1985)2 C LR 147 R ν Hall[1968]52 Cr App R 528 20 R.v JohalandRam [1972]56Cr App R 348 Mehmetv ThePolice
(1970)2 C LR 62 HjiSolomouv TheRepublic 1964 C LR 170 Pouns and Othersν TheRepublic(\983) 2C LR 148, R ν Gregory [1972] 1W LR 991 25 Appeal against conviction. Appeal against conviction by Georghios Chr Leonidou who was convicted on the 31st January, 1987 at the DistnctCourtof Paphos (CnminalCase No 849/86) on one countof the offence ofassault causing actualbodily harmcontrarytosection243 ofthe 30 Cnminal Code Cap 154 and was sentenced by Anastassiou, S DJ. tothree months'impnsonment Appellant appeared in person S. Matsas, for the respondents 98 15 2 C.L.R. Leonidou v. Police TR1ANTAFYLLIDESΡ The judgment of the Couit will be delivered by Mr Justice Sawides SAW1DES J The appellant was originally charged with rape under sections 144 and 145 of the Cnmmal Code Cap 154 In 5 view of directions by the Attorney-General of the Republic inthe exercise of thepowers vestedinhimunderpara (b)ofsection 155 of the Cnminal Procedure Law Cap 155 the case was tried summarily by aSeniorJudge of the DistrictCourt After the close of the case for the Prosecution the tnal Court 10 accepted οsubmission by counsel for the appellant that a prima facie case had notbeen madeoutagainst theappellant sufficiently to require him tobe called upontomake hisdefence andwenton to hold thatthe evidence adduced by the Prosecution disclosed a prima facie c a v against the appellant contrary to section 243 of 15 the Cnminal Code It thereupon acquitted the appellant on the count of rape and directed the amendment of the charge by the addition of a s^csj-.d coum ι harging him with assault causing actual bodily harm, contrary to section 243 of Cap 154 According to his decision the trial Judge inso doing relied onthe 20 provisions of section 85
(1)and
(4)of Cap 155 and noton section 83 and for this reason he did not adopt the procedure contemplated by section 84 mcases of amendmentof a defective charge undersection 83 The appellant was charged accordmqly butbefore he entereda 25 plea his counsel voiced his objection to the addition of such a coun' contending that such amendment was made without counsel having been asked toexpress hisviewson thematter He further submitted thatthedecision was wrong astheprovisions of section 85
(1)and
(4)relied upon by theCourtwere not applicable 30 at that stage of the proceedings as the trial had not been concluded The provisions which were applicable, counsel submitted, were those under section 83 and the procedure to be followed thatprovided by section 84 The trial Judge rejected the objection raised and repeated that he adopted the formula of 35 section85
(1)and
(4)because hefeltthatthatwas thecorrectone The appellant pleaded not guilty and was called upon for his defence Counsel for the appellant asked leave from the court to recall the witnesseswho gaveevidence atthepreliminary inquiry andin 40 particularthecomplainant,for cross-examination inrespect of the 99 Sawides J. Leonidou v. Police
(1987)new count TheCountrefused such leave onthegroundthatthere is no provision in section 85
(1)and
(4)for recalling and further cross-examining witnesses who had already given evidence. Counsel for the appellant then applied for an inspection by the court of the locus and in particular the house of the appellant 5 where the alleged offence had taken place. Counsel for the respondent, on the otherhand, strongly objected to such course and the Courtruled against such inspection. After hearing the evidence of the appellant and one witness called by the defence, thelearned trialJudge found theappellant 10 guilty on the new count and sentenced him to three months imprisonment. Before concluding his judgment the learned trial Judge reverted tothe reasons given by himwhy he regarded that the procedure under section 85
(1)and
(4)of Cap. 155 was the proper one inthecircumstancesof thecase andsaid thefollowing 15 in this respect: «Before I conclude my judgment I feel 1must comment upon the observation of Defence Counsel regarding the procedure of s. 85
(1)and
(4)of Cap. 155 which was followed by the stage of the submission for the prima facie case and I 20 have thisto say: (a)S 83 does not apply here as the charge is not defective buttheevidence was simply insufficient forthisoffence forthe reasons given inthe ruling. (b)Consequently s.84 does notapply as well. 25 (c)As regards s. 85
(1)and
(4)once the ruling on theprima facie submission was infavour of theaccused andtheaccused was not called upon to make his defence Isay thatthe case must be considered as concluded there and then and that's why the provisions of s. 85 were followed instead of those of 30 s. 83 and s. 84, and I consider itto be the proper thing to do in the circumstances because of the provisions of the case of Hadjisolomou - ν - The Republic, 1964 where an almost similar procedure was recommended at the stage of the submission of no prima facie case. 35 (d) Even if s. 85 was not applicable here, the formula followed did not deprive the accused or prejudiced him in making his defence as he was allowed and indeed he gave evidence, he called witnesses for his defence.» 100 2 C.L.R. Leonidou v. Police Savvides J . Counsel for the appellant in hissix-paged notice of appeal has not only set out the grounds of appeal lelied upon but has given also full particulars of the iiregularities which, he alleges, had led to substantial miscarriage of justice in the case under 5 consideration. At the hearing of this appeal counsel for the appellant did nor appearasnoticeoftheappeal hadnotbeen sea'edonhimintime. Bearing, however, in mind that the giounds of appeal and any argument insupport otthem appealed sufficiently mthe noticeof 10 appeal prepared by counsel for the appellant and that by adjourning the hearing of the appeal, the appellant might have completely served his term of imprisonment. in fairness to the appellant and with hisconsent, we decided toheat the appeal on the material placed before us by hiscounsel, which was adopted 15 bythe appellant. The material ground on which the appeal turns, iswhether the trial Court correctly relied on section 85
(1)and
(4)in the circumstances ofthepresem elseorwhethei theprovisionswhich should have been relied upon were thosp under sections S3 and 20 84. Sections 83,84 and 85 of Cap 155.which are material to the present case,provideas follows:- 25 •83.
(1)Where,atanystageofatrial,itappears tothe Court that thechargeorinformation isdefective, either in substance or in form, the Court may make such order for the alteration of the charge or information either by way of amendment of the charge orinformation orbythe substitution oradditionof anewcountthereon astheCourt thinksnecessarytomeetthe circumstances of the case 30
(2)Whereachargeorinformation issoaltered, anoteofthe order for the alteration shall be made on the charge or information and the charge or information shallbetreated for the purpose of all proceedings in connection therewith as havingbeen filed inthe altered form. 35 84.
(1)When acharge orinformation isaltered asinsection 83 provided, the Court shall forthwith call upon the accused topleadtheretoandtostatewhether he isready tobetriedon such altered charge or information.
(2)Ifthe accused declares that he is not ready, the Court 101 S a w i d e s J. Leonidou v. Police
(1987)shall consider the reasons he may give and, if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutorinhisconduct ofthecase theCourtmay proceed with the trial as ifthe altered charge or information had been 5 the original one
(3)If the altered charge or information is such that proceeding immediately with the trial islikely, mthe opinion of the Court to prejudice the accused or the prosecutor the Court mayeitherdnect anewtrialoradjourn thetrialforsuch 10 period as theCourtmay consider necessary
(4)When a charge or information is altered by the Court after the commencement of the tnal the evidence already given in the course of the trial may be used without being reheard but the parties shall be allowed to recall or re- 15 summon any witness who may have been examined and examine or cross examine witness with reference to such alteration 85
(1)If part only of the charge or information is proved and the part so proved constitutes an offence, the accused 20 may, without alteringthecharge orinformation, be convicted of the offence which he isproved tohave committed
(2)Ifa person ischarged with an offence, he may, without alteringthechargeorinformation, beconvicted of attempting tocommit the offence
(3)Ifaperson isprovedtohavedoneanyactwiththeintent to commit the offence with which he ischarged, and ifitisan offence todosuchanactwithsuch an intent,he may,without amendingthechargeorinformation and notwithstandingthat he was not charged with such last-mentioned offence, be 30 convicted of the same
(4)IfattheconclusionofthetnaltheCourtisofopinionthat it has been established by evidence that the accused has committed an offence oroffences notcontained inthecharge or information and ofwhich he cannot be convicted without 35 amendingthe chargeorinformation, and upon hisconviction forwhichhe would notbe liabletoagreaterpunishment than he would be liable to if he were convicted on the charge or information, and that the accused would not be prejudiced 102 25 2 C.L.R. 5 Leonidou v. Police S a w i d e s J. thereby inhisdefence, theCourtmay directacountorcounts tobe addedtothechargeorinformationchargingtheaccused with such offence or offences, and the Courtshall givetheir judgmentthereonas ifsuch countorcountshadformed apart of theoriginal charge or information» As itappears inthetextandpointedoutalso inasenes of cases of this Court the requisites which have to be satisfied before section 85
(4)can be applied are- 10 (a)Itmustbe established by evidence thattheaccused has committed an offence not contained in the charge or information (
- b)Theaccused cannotbe convictedwithoutamendingthe charge orinformation 15 20 (c)The accused must not upon his conviction on the new offence be liable to a greater punishment than if he were convicted on the charge or information as it stood, inother words that the punishment provided by law for the added offence mustnotexceed thatof theonginal offence (
- d)That the accused would not be prejudiced by the amendment inhis defence (see, interaha, Chrysostomou ν ThePolice, Δ<\ CLΚ 192 at ρ 194, Foum & Others ν Republic
(1980)2 CLR 152 at ρ 177 and Panayides& Othersν Police
(1985)2 C LR 147 atρ 163, in all threeof thems 85
(4)was considered) 25 On the question as to when a charge or information may be considered as defective so thattheprovisions of s 83 and 84 can be applied, useful guidance may be denved from Archbold's Cnminal Pleading,EvidenceandPractice,40thed ρ 52,para 53 where itis stated as follows «(a)Anindictmentisdefective notonlywhen itisbadonthe face of it,but also 35 (ι) When it does not accord with the evidence before the commiting magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge anoffence which isdisclosed therein, (n) When for such reasons it does not accord with the 103 S a w t d e · J. Leonidou v. Police
(1987)evidence given at the trial: R. v. Hall[1968] 52 Cr. App. R. 528; R. v.Johal andRam*.» The object of the provisions of sections 83,84 and 85 of Cap. 155wascorrectlystatedbyVassiliadesP.inthecaseofMehmet v. The Police
(1970)2 C.L.R.62inwhichatpp.68and 69weread 5 the following: «As observed during the argument, by my brother Mr. JusticeJosephides, theprovisions inthispart ofthe Criminal Procedure Law (sections 83, 84 and 85) were the result of statutory amendments to enable the Courts todojustice ina 10 case where technicalities might lead to acquittal notwithstanding proof of sufficient particulars to support a count, as happened inseveral casesprior tothe amendment of the statute. Cases decided in other jurisdictions where different considerations apply are, therefore, of no help here 15 after the amendments introduced by these sections of our Criminal Procedure Law. As has been aptly said by Chief JusticeWarren ofthe UnitedStatesweshouldnotbecome so obsessedwiththetechniquesofthejudicialmachinerythatwe forget thepurposes ofasystem ofjustice.» 20 Inthatcaseafter witnessesfortheprosecution andtheappellant gave evidence and the trial was concluded, the trial Judge in makinghisfindings,after hehaddealtwiththeevidenceand made hisassessment ofthetestimony before him,proceeded to amend the charge so as to confine the particulars in the counts to the 25 established facts and he convicted the appellant on the amended charge. The trial Judge did not say whether in amending the charge he was making use of the provisions of section 83 or 85. The Court of Appeal in dismissing the appeal ruled that the case clearly came under the provisions of section 85
(1)and that the 30 Judge could have convicted the appellant on the counts as they were originally framed stating atthesame time that certain of the allegations in the particulars had not been established, and concluded asfollows (atp.68):«Ifwhathasbeenprovedwassufficient tosupportthecount 35 upon whichtheaccusedwaschargedtheJudge couldconvict - withoutmakingany amendment.» Similarlyinthecasesof Chrysosiomou v.ThePolice,24C.L.R. *[1972]56 Cr. App. R. 348. 104 2C.I..R. Leonidou v. Police Sawtdea J. 192 and Hji Solomon v. The Republic, 1964 C.L.R. 170, the provisions of section 85 came up for consideration by theCourt of Appeal. In the Chrysostomou case the appellant was originally charged withtheoffence of discharging aloaded firearm 5 with intent to alarm. After the witnesses for the prosecution and defence were heard and the trial was concluded, the trial Judge acting under section 85
(4)directed a new count to be added charging the appellant with failing to keep his firearm in safety, acquitted him on the original count and found him guilty on the 10 othercount.TheCourtofAppeal found thatthetrialJudge didnot go wrong in doing so and dismissed the appeal affirming the conviction. In the Hji Solomou case the original charge upon which the appellant was committed for trial was one of premeditated 15 murder.Attheclose ofthecase for theprosecution counsel forthe defence submitted that no case had been made out against the appellant sufficiently to require him to be called upon for his defence. The Assize Court gave its ruling and ordered the substitution for the charge of premeditated murder of a count 20 charging the appellant with homicide under section 205 of the Criminal Code on which he found theaccused guilty.From what appears in thejudgment of the Courtof Appeal theAssizeCourt made use of their powers under section 83
(1)of the Criminal Procedure Law and the requirements of section 84 were duly 25 complied with and the case reached in due course the stage of judgment.Vassiliades,J.indelivering thejudgment oftheCourtof Appeal, had thistosay at p. 175:- 30 35 40 «Apart of otherconsiderations arising inthe circumstances of this particular case, itwould seem thatatthatstage of the proceedings, theelementsof thecrimecharged, couldhardly be treatedseverally. Η attheconclusion of thetrial,theCourt were to take the view that 'part only of the charge was proved' and that 'the part so proved constitutes an offence", the accused could be convicted of the offence which he was proved to have committed 'without altering the charge or information', as provided in section 85
(1)of the Criminal Procedure Law. With the whole evidence intheirhands,the Court would then be in a position to decide the case before them, on its merits;and notmerely determinetheprima facie aspect of partof thecount charged.» The provisions of all three sections 83, 84 and 85 came up 105 S a w i d e s J. Leonidou v. Police
(1987)recently for consideration by the Supreme Court in the case of Pouns and Others ν The Republic
(1983)2 C LR 148 The appellants in that case were charged and tned on the basis of an information containing four separate counts in relation to the premeditated murders of four persons After having heard the 5 evidence for theprosecution thetrial Courtheld thatapnma facie case had not been made out against the accused sufficiently to require themtobe called upontomaketheirdefence onanyofthe four counts but proceeded to amend thecharge by directing that two new counts be added charging the accused with offences 10 related tocarrying onwar -orawarlikeundertaking,purportingto act under the provisions of section 83 of Cap 155 Therefore the Courtapplied theprovisions of section 84 by allowingthe accused to have a numberof witnesses, who had given evidence, recalled and cross-examined in respect of the new counts Tnantafyllides, 15 Ρ in dehvenng the judgment of the Court of Appeal after expounding on the pnnciples in relation to the notion of what amounts to a defective charge or information and after making extensive reference to the English case law on the matter ot the corresponding section 5
(1)of the Indictments Act, 1915, in 20 England,andafter pointingcertaindifferences between section 83 and 84 and theEnglish Act, concluded as follows at ρ 167 •Inthelight of all theforegoing we are of theopinion thatit was open tothe tnal Court,inthe particular circumstances of the present case, to proceed to amend the information by adding the new counts,5 and 6 undersection 83
(1)of Cap 155, after it had acquitted the appellants as regards the four counts in the information on the basis of which theirtnal had commenced » And went on as follows at pp 167-168«It has been submitted that after the appellants had been acquitted on the initial counts, 1to4, itwas no longer legally possiblefor thetrialCourttoresort toitspowers undersection 83
(1)of Cap 155 But we are not prepared to place such a restrictive interpretationon the said section as toexclude the 35 course adopted by thetrial Court inthepresent case We are of the opinion that the inclusion therein of the expression 'atany stageof thetrial'showsthatthesectioncan be resorted to, in the manner in which this was done in the presentcase, namely atthestageatwhich thetrial Courtrules 40 106 25 30 2 C.L.R. 5 Leonidou v. Police S a w i d e s Λ. that no prima facie case has been made against an accused sufficiently to require him to be called upon to make his defence on the information as ithas been initially framed but before thetrialhasbeen finally concluded:and.inthisrespect. we are of the view that the provisions of section 74(l)(b) of Cap 155 have tobe read in conjunction with, andsubject to. the provisions of section 83
(1)of thesame Law.» The question also arose in thatcase before theSupremeCourt, as inthepresent case, as towhether theamendmentwas justified, 10 in view of the fact that the views of defending counsel had not been sought before the amendmentof theindictment. After making reference to the English authorities and in particular to the case of R. v. Gregory,[19721 1 W.L.R. 991, Tnantafyllides, P.said the following atp. 161: 15 20 25 30 35 40 «Inthepresentinstancewe thinkthatitwas advisable forthe trial Court to seek theviews of counsel for the parties before it. and in particular of counsel for the appellants, before adopting, on its own motion, the course of amending the information as it has done by the addition of the two new counts. 5 and 6 But the failure to seek the views of counsel did not amount, in our opinion, in the light especially of all relevant considerations in the present cases, to a material irregularity requiring us to set aside the convictions of the appellants in respect of thesaid two counts.» It is abundantly clear from the above authorities that the provisions of section 83 come intooperation at any stage of the proceedings andinany case before theconclusionof thetrial (vide Pouns case (supra)).When thetrialisconcluded andtheCourthas evaluated the evidence before it, coming both from the prosecution and the defence, it may. at the stage of making it» findings on the facts, if itcomes totheconclusion thatpartonly of thecharge orinformation hasbeenproved,andthepartso proved constitutes an offence, convict the accused, without altering the charge or information, of the offence which he is proved to have committed,undersub-section
(1)of section 85:or if thecourtisof the opinion that it has been established by evidence that the accused has committed an offence or offences not contained in the charge orinformation, itmay directthatanew countbe added to the charge or information charging the accused with such offence or offences and the Count may give its judgment thereupon, as if the said count or counts had formed part ot the 107 S a w i d e s J. Leonidou v. Police
(1987)original charge or information, inaccordance with sub-section
(4)of section 85 and subject tothe requisites set out therein. In the present case the trial had not been concluded and the question arose at the close of the case for theprosecution after a submission was made by counsel for the appellant that a prima facie casehadnotbeen madeoutagainsttheappellant sufficiently to require him to be called upon and makehisdefence. The only section which could be invoked at that stage of the proceedings wassection83
(1)and notsection 85
(4)whichisonlyapplicablein caseswhere the trial hasbeen concluded. 5 10 In the circumstances of the case under consideration we have reached the conclucion that the learned trial Judge wrongly applied the provisions ofsection 85
(4)and thathe misinterpreted thedecisionsinthecaseofChrysostomou andHadjiSolomou and wrongly considered that the dicta in those cases supported his 15 viewthatinthecircumstancesofthepresentcasetheprovisionsof section 85
(1)and
(4)were applicable. Thelearned tnalJudge by adopting theprocedure undersection 85
(1)and
(4)andnotthatof sections 83 and 84'deprived the appellant of the advantages of section 84 and inparticularsub-section
(4)of section 84 enabling 20 theappellanttohavethewitnesses,whosedepositionsweretaken at the preliminary inquiry and had been put in asevidence atthe trial,recalled and cross-examined on the new count added. In the result we have reached the conclusion that the wrong application of the law has ledtosubstantial miscarriage ofjustice 25 and in the exercise of our powers under section 145(l)(b) of the Criminal Procedure Law, Cap. 155, we allow the appeal and quash the conviction ofthe appellant. Appeal allowed. Conviction quashed. 30 108