clr/1988/1988_1_17.pdf

(1983)1C L R 933 decided before the amendmentof the section by Law 44/83 Tnantafyllides Ρ held that the Distnct Court has discretion whether to hold or not a preliminary inquiry, whereas in Re Argyndes

(1987)1 C L R 30 StyhanidesJ decided thatthere is nosuch discretion 25 Held, dismissing the application

(1)Invirtue of section 3 of Law 42/74,asamended,theDistnctCourtisvested with power tocommit the accused for tnal without holding a preliminary inquiry provided that the following prerequisites are satisfied, namely (a) written 17 In re Elllnas

(1988)certification by the Attorney-General of the Republic signifying his consentthattheholding ofapreliminary inquiry isnotnecessary and (b)furnishing theaccused orhiscounselwith copiesofthestatements of every witness that the prosecution intendsto call at the tnal The question in this case is whether the Court had discretion to hold a 5 preliminary inquiry, notwithstanding fulfilment of the requisites laid down ins 3

(2)In the light of the case law no exception can be taken on pnncipleorauthontytothevestingof power intheAttorney-General to dispense with theholding of a preliminary inquiry 10

(3)Section 3 does not in terms repeal or amend s 92 of the Cnminal Procedure Law, providing for the holding of a preliminary inquiry Itmerely obviates theneed for such a course whenever the prerequisites laid down thereunderare satisfied Theinevitable inference isthatbys 3(a)thelegislature intendedto 15 constitute the Attorney-General, the arbiter of the necessity of holding a preliminary inquiry, and by s 3(b)toestablish a substitute for thedepositions asameansof appnsing theaccused of thecase he will face atthetnal The law does not in terms make the decision of the Attorney- 20 General as to the non-desirability of holding a preliminary inquiry subject to judicial control Such a power cannot be implied by the concludingwords of section 3namely«tocommittheaccused totnal without holding apreliminary inquiry» Butfor theendingpartofs 3, the Court would have had no power to commit to tnal without a 25 preliminary inquiry Therefore, itcanbe legitimately inferred thatthe discretion vested in the Court thereby is directly related to the committal of the accused to tnalwithout a preliminary inquiry

(4)The discretion imported by the concluding part of s 3 is referable to the justification of committal The Court must decide whether the matenal made available under s 3(b) replacing the deposition, that is, the statements of witnesses stnpped of any contradictions, raises a probable presumption of the guilt of the accused Application dismissed No order as to costs Cases referred to Re Ioannis Ktimatias

(1977)2C L R 296, Constanhnides ν TheRepublic

(1978)2 C L R 337, 18 30 35 1 C.L.R. Inre Ellinas ReEconomides

(1983)1 C.L.R. 933; ReArgyrides

(1987)1 C.L.R. 30; Xenophontosv. Repubic, 2R.S.C.C. 89; Policev.Athienitis

(1983)2C.L.R."194; 5 Constantinidesv. EkdotikiEteria

(1983)1 C.L.R. 348; Papaphilippouv. theRepublic1 R.S.C.C-62; Republicv.Zacharia, 2R.S.C.C.1; Policev. Hondrou, 3R.S.C.C. 82; RodosthenousandAnotherv.ThePolice, 1961C.L.R. 48; 10 GeorghadjiandAnotherv. Republic

(1971)2C.LR. 229; Attorney- Generalv. PourisandOthers

(1979)2C.L.R. 15; Hintsv.ThePolice

(1963)1 C.L.R.

1. Application. Applicationforanorderofcertiorariforthepurposeofquashing 15 the rulingofaJudge oftheDistrictCourtof Limassol (Stavrinides, D.J.) dated 21st November, 1987 (Criminal Case No. 22444/87) whereby the holding of a preliminary inquiry was found to be inexistent. G. Cacoyannis withM,Malachtou (Mrs.), for the applicant. 20 CI. Antoniades, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. PIKIS J. read the following judgment. At issue is the interpretation and effect of s. 3 of the Criminal Procedure 25 (TemporaryProvisions)Law 42/74*,particularlythediscretionof the Court, if any, to order the holding of a preliminary inquiry, notwithstanding fulfilment oftheconditionsstipulated forinparas. (a) and (b) of s.
2. On an application to the District Court of Limassol for the committal of Yiannakis P. Ellinas to trial on a 30 numberofindictable offences, theCourtruled ithadno discretion to direct the holding of a preliminary inquiry taking the view that the discretion vested in the Court by virtue of s. 3 of the law is *AmendedbyLaw44/
3. 19 PiklsJ. Inre Ellinas

(1988)confined to an assessment of the effect of the statements of witnesses with a view to deciding whether they contain sufficient material to commit the accused totrialbefore the Assize Court. Following the leave of the Court, the application here under review was filed challenging the validity of the decision of the 5 Court whereby jurisdiction to examine an application for the holdingofapreliminary inquirywasfound tobeinexistent.Andan order is sought to quash that decision by means of a writ of certiorariinexercise ofthepowersvestedintheSupremeCourtby para. 4 ofArt. 155. 10 Section 3 of Law 42/74 provides that notwithstanding the provisions of s. 92 of the Criminal Procedure Law, the District Courtisvestedwith powertocommittheaccused totrial provided the conditions envisaged by paras, (

1. a)and (
2. b)of the law are satisfied. Theyare (a)written certification bytheAttorney-General 15 of the Republic signifying his consent that the holding of a preliminary inquiryisnotnecessary,and(b)furnishing theaccused or his counsel with copies of the statements of every witness that the prosecution intends to call at the trial. Provided the above requisitesaresatisfied «theCourtispossessed ofpowertocommit 20 the accused to trial without holding a preliminary inquiry». Evidently, the foremost object of the law is to provide an alternative procedure to a preliminary inquiry as a necessary prelude for the committal of the accused, inthe interest of speed in the transaction ofjudicial business. ^ The crucial question, as earlier indicated, iswhether the Court has discretion to hold a preliminary inquiry notwithstanding fulfilment of the requisites laid down in s. 3. Learned counsel for both sides drew attention to conflicting authority bearing on the subject under examination and made reference to other cases 30 tendingtothrow lighton the que tion under review. We may begin by noting that s.3 of Law42/74 haspassed the test of constitutionality posed in the cases of Re Ioannis Th. Ktimatias*and Constantinides v. Republic**. TheSupreme Court decided that s. 3 does not breach the provisions of eitherArt. 12 35 or30 inthat neithersafeguards arighttoajudicialinquiryintothe justification of the charge asacondition precedent tocommittal to *U977)2C.L.R.296. *·

(1978)2CL.fi.

1. '20 1 C.L.R. In re Ellinas Plkls J . trial.Thepreliminary inquiryistheoffspring ofstatuteand assuch may be modified or be done away with or suspended by the legislature, as was done by the enactment of Law 42/
2. The conflicting judicial pronouncements on the ambit and effect of 5 s.3,with particular reference tothe discretion vested inthe Court thereby, stem from the decisions of the Supreme Court in the exerciseofitsoriginaljurisdiction inthecasesofInRe Economides and Others* and In Re Arghyrides**. In the former case Triantafyllides, P., adopted the view that the discretion of the 10 Court to commit isnot solely dependent on the sufficiency of the evidence and for that reason committal is not «an automatic function»***. Elsewhere in his judgment the learned Judge espouses the view that discretion vests in the Court to hold a preliminary inquiry «soasto avoid puttinga person totrial before 15 the Assize Court without sufficient evidence justifying such course». Inthe lattercase(InReArghyrides)Stylianides,J., tookacontrary viewofthe'effect ofs.3.ThelearnedJudgedecidedthatdiscretion to dispense with a preliminary inquiry vests with the Attomey20 General,afunction compatiblewiththequasijudicialnature ofhis duties under the Constitution acknowledged in Xenophontos v. Republic****.Therefore,.the discretion of the Court islimited to decidingwhetherthematerialdisclosedinthestatements warrants the committal ofthe accused totrial. 25 InCriminalProcedure inCyprus*****ananalysisismade ofthe provisions of s. 3, albeit without authoritative caselaw guidance andsuch assistance asmaybegained from theponderation of the implications deriving from the application of the law in practice. The authors, myself being one, took the view that residual 30 discretion vests in the Court to hold a preliminary inquiry notwithstanding the consent of the Attorney-General to dispense ; with it. I have given serious consideration to every aspect of the question under examination aided, Imust acknowledge, by the 35 illumination of the issue by the elaborate arguments of counsel. *

(1983)1C.L.R. 933.' '•11987)1C.L.R.

1. ***Page
2. ""2R.S.C.C.
3. "*»*By LoizouandPikis

(1975),pages 177,178. 21 In re Ellinas PlklsJ.

(1988)Mr. Cacoyanntssubmitted, as I comprehended hisargument,that the Court should not suffer an encroachment on the exercise of judicial power, drawing attention to my dissenting judgment in Police v. Athienitis* and the judgment of the Court in Constantinides v. Ekdohki Eteria**. Consequently, only in the 5 face of compelling language should the Courtconstrue the law as depriving the Courtof discretion todirectthetaking of the judicial course of holding a preliminary inquiry. Far from putting the matter beyond controversy, counsel argued thats. 3 supports the vesting of residual discretion in the Court to hold a preliminary 10 inquiry, if this course is found to be in the interest of justice; especially iftheview istaken thattheelicitation of the case for the prosecution prior to trial is conducive to the achievement of that end. For his part counsel for theRepublic adopted the exposition of 15 the law made by Stylianides, J., in Re Arghyrides (supra) as a conclusive answer to the submissions raised on behalf of the applicant. The legislature could appropriately vest, he argued, power intheAttorney-Generaltodeterminethenecessity of steps preliminary to the trial, a function well within the nature of the 20 duties entrusted tohim by the Constitution (Art. 113). From the early days of the Republic it was recognized that decisions of theAttorney-Generalpertainingtotheprosecutionof offenders constitute acts interwoven with the administration of justice and as such are subject only to judicial control; such 25 decisions being procedural';:binding on the Court***.It emerges from the caselaw that the d^icr.inaiion of the forum of trial and matters relevant thereto arc notjudicial acts stricto senso, though subject tojudicial control by theCo^rii,:he vestees of the judicial power and overseers of the judicia' process****. The Criminal 30 Procedure Law confers on the Attorney-General a variety of powers relevant tothedeterminationof theforum and framework *

(1983)SCLR 194,234 ·*

(1983)1CLR 348, 355, 356 "* Republic v.CharalambosZachana. 2R 5 C.C 1 *'" Papaphilippou ν Republic 1 RSCC 62, Policeν Hondruu iRSCC 82, Lefktos Rodosthenous & Another ν The Police

(1961)C.LR. 48 Photini Potycarpou Georghad;i&Another ν Republic

(1971)2CLR 229, Attorr.L-v-Generalν Pounsand Others

(1979)2 C.L.R 15 22 1 C.L.B. In re Ellinas Pifcis J. of the trial. Of especial relevance iss. 155(b) (Cap. 155) puttingit in the power of the Attorney-General to remit for summary trial a case committed tothe AssizeCourt for trial.Similarly s.24

(2)of the Courts of Justice Law (14/60), makes provision for the 5 summary trial of offences with the consent of the AttorneyGeneral otherwise triable on information. The interpretation of the aforementioned statutory provisions and their effect within the framework of the exercise of judicial power came up for consideration in loannis Georghiou Minisv. 10 77ie Police*. The Court was immediately concerned to decide whether s. 155(b) of the Criminal Procedure Law was impliedly repealed bytheprovisionsofs.24

(2)oftheCourtsofJustice Law. In the process the Court debated the nature of the power conferred ontheAttorney-General bys.155(b)ofCap. 155andits 15 place in the administration of justice. The Court decided that s. 24

(2)of Law 14/60 left unaffected the application ofs. 155(b). Of immediate relevance are the observations of the Court that s. 155(

1. b)far from being a provision obnoxious to the liberty of the subject, isanenactmentintended tohelpintheproperand speedy 20 administration of justice. The dicta in Minis support the proposition that the determination of the forum of the trial within the context of thejudicial power as laid down inthe Constitution (Articles 30.1 and 152.1), is a procedural matter and as such its determination may be assigned to the ,Attorney-General. 25 Consequently, noexceptioncanbetakenonprincipleorauthority to the vesting of power in the Attorney-General to dispense with theholding ofapreliminaryinquiry.Wemust,therefore, turntos. 3 in order to discern as a matter of a judicial interpretation, the ambit of the discretion entrusted tothe Court. 30 Section 3 does not in terms repeal or amend s. 92 of the CriminalProcedure Lawprovidingfortheholdingofapreliminary inquiry. It merely obviates the need for such a course whenever the prerequisites laid down thereunder are satisfied, namely (
2. a)certification by the Attorney-General of the non-necessity of 35 holding apreliminaryinquiry,and (b)supplyingtheaccused orhis .counsel with the statements of prosecution witnesses. The inevitable inference is that by s.3 (
3. a)the legislature intended to constitute the Attorney-General, the arbiter of the necessity of *

(1963)1 CL.R. 14. 23 Pikis j . InreEllinas

(1988)holding a preliminary inquiry, and by s. 3(

1. b)to establish a substitute for the depositions asa means of apprisingthe accused ofthecasehe willfaceatthetrial.Forthereasonsearlierindicated, no objection can be raised to the conferment of power upon the Attorney-General to determine the necessity for a preliminary 5 inquiry.Similarly,itwasinthepowerofthelegislaturetoprescribe an alternative process of informing theaccused ofthe casehewill be required tomeetathistrial.Thelawdoesnotintermsmakethe decision of the Attorney-General as to the non-desirability of holding a preliminary inquiry subject tojudicial control. 10 What we must determine is whether this power should be impliedbytheconcludingwordsofs.3bestowingpowerupon the Courttocommitthe accused totrialwithoutapreliminary inquiry. Butfortheendingpartofs.3,theCourtwouldhavehadnopower to committotrialwithoutapreliminaryinquiry.Therefore, wecan 15 'egitimately infer that the discretion vested inthe Court therebyis directly related to the committal of the accused to trial without a preliminary inquiry. The power vested in the Court cannot be extricated or be read separately from the introductory part of s. 3 defining thecircumstancesunder whichapreliminaryinquirymay 20 be dispensed with. Read in thislight, the meaning and effect ofs. 3 isto empower the Court to commit the accused to trial despite the absence of a preliminary inquiry; provided the conditions set down ins.3(a)and (b)are satisfied. The power giventothe Court by the concluding part of s. 3 is intended to save the power to 25 commit notwithstanding the non-holding ofapreliminary inquiry. While the discretion imported thereby is referrable to the justification of committal, the law does not repeal s. 94 of the Criminal Procedure Law, Cap. 155, and does not abrogate the standard governing committal, namely, probable presumption of 30 the guilt of the accused. The Court must decide whether the material made available under s. 3(
2. b)replacing the depositions, that is,thestatements of witnesses,stripped ofany contradictions, raises a probable presumption of the guiltofthe accused. I conclude that the Judge inquiring into the case has no 35 discretion to order the holding of a preliminary inquiry when the requisites ofs.3(a)and (b)ofLaw42/74aresatisfied. The function of the Court is confined to ascertaining whether the material disclosed inthe statements warrantsthe committal ofthe accused to trial.The application isdismissed. No order astocosts. 40 Application dismissed. No order astocosts. 24