(1988)1988June15 (A L0120U. P.) INTHEMATTEROFANAPPLICATION BYYIANNAKISP. ELUNAS FORLEAVETOAPPLYFORANORDEROFCERTIORARIETC. and INTHEMATTER OFARULINGOFTHEASSIZECOURTOF UMASSOL DATED 1.6.88INCRIMINALCASENO.22446/87. (ApplicationNo. 99/88). Criminal Procedure—Committal for trial before an Assize Court— Preliminary objections raised before plea relating to alleged invalidity of the committal order—Whether Assize Courthas power tolook atthe statements of witnessesplaced before the committing Judge inorder todecide whether they disclosethe chargesfaced by 5 theaccused—Questions determined inthe negative. Criminal Procedure—Committal for trial before an Assize Court— Preliminary objections raised before plea relating to alleged invalidity of the committal order—Whether the Assize Court has power to examine whether the committing Judge exercised 10 wrongly his discretion on the ground that the offences were not disclosed inthe statements of the witnesses—77i/sisamatter within the exclusive jurisdiction of theSupreme Court underArticle155of the Constitution. Criminal Procedure—The CriminalProcedure Law, Cap.155, section 15 148—Question of law reserved for the opinion of the Supreme Court—Application made by accused—Principles governing the exercise of the discretion of trialCourt. The applicant was committed to trial before the Assize Court of Limassol forvarious offences. After thefilingofthe Information, but 20 before plea, the applicant raised before the Asize Court various preliminary objections. All objections were, in effect, based on an alleged invalidity ofthe committal order, The Assize Court concluded that the case lawshows that even in England itisnot permissible, and thetrialCourt had norighttorefer 25 to the evidence and/or depositions which were placed before the committingJudgeinordertodecideifandwhetherthecharges faced 354 1 C.L.R. In re EUlnas by the accused are disclosed, that is only permissible in the other instanceswhich do notcover the objections. 5 10 The Assize Court further concluded that if the objection was considered as referring to a mistake of the committingJudge in the sense of wrong exercise of his discretionary power to commit the accused fortrialbefore theAssizeCourt on thebasisofthe statements from whichnoneoftheoffences forwhichtheaccusedischargedare disclosed, the Assize Court again was deprived of the right to examine that position inview of the provisions of Article 155of the Constitution asthe onlycompetent Court todecidesuchasubjectis theSupreme Court and notthe Assize Court. 15 Asaresultthepreliminaryobjectionsweredimissed.Theapplicant applied under section 148 of Cap.155for 4 questions of law to be reserved for the opinion of the Supreme Court. The Assize Court dismissed the application. 20 This is an application for leave to apply for orders of certiorari, mandamus and prohibition both against the ruling dismissing the .preliminary objection and against the ruling dismissing the application for reservingthe 4questionsoflawforthe opinion ofthe Supreme Court. Held, dismissingtheapplication:
(1)ThisCourtisinfull agreement with the approach adopted by the Assize Court as regards the preliminary objections. 25 30
(2)In any event the statements of the witnesses filed during the committal proceedings disclosed sufficient evidence justifying committal .
(3)Inrefusingtoreservethefourquestionsoflawfortheopinionof the Supreme Court the Assize Court exercised their discretion properly and inamanner consistent with the approach ofthisCourt in a number of cases regarding the desirability that the trial of a , CriminalcaseandespeciallyanAssizecaseshouldnotbe interrupted unduly. ' Application dismissed. Casesreferredto: 35 HadjiGeorghiou v.Republic, 1964C.L.R. 156; Mouyios v.Police
(1974)2 C.L.R.23; ./?. v.Hall[1968]2AilE.R. 1009; 355
(1988)InreElliotts Rv. Gee[1936]2AllE.R.89; R. v. Chairman of London CountySessionExPartDownes
(37)Crim.App.R.148; JohnMcKinsieJonesandOthers[1974]59Crim.App.R.120; Rv. McDonnel[1966]1 AllE.R. 193; 5 R. v. MustafaHaitiandAnother, 13C.L.R. 65; Republicv. Kalli, 1961C.L.R.266; ReCharalambousandAnother
(1974)2C.L.R.37; Policev. Sampson
(1977)2C.L.R.
- Application. 10 Application for leave to apply for an order of certiorari and/or mandamus and/or prohibition against the ruling of the Assize Court of Limassoldelivered on 1.6.1988rejecting the preliminary objections raised on behalf of the applicant prior to his arraignment and also against the refusal of the Assize Court to 15 reserve a question of lawfor the opinionof theSupreme Court. G. Cacoyiannis with P.Mouaimisand M.Koukkidou (Miss),for the applicant. Cur,adv. wit. A.LOIZOU P.read the followingjudgment. I havejustrefused, 20 inthe judgmentdelivered inApplication No. 100/88,leave to the applicant to apply for an Order of Certiorari to remove into the Supreme Courtforthepurpose ofitsbeingquashed hiscommittal bytheDistrictCourtofLimassol(StavrinidesD.J.),fortrialbefore the Assize Court of Limassol, and for an Order of Prohibition 25 prohibiting the Assize Court of Limassol from proceeding to arraign and/or trytheapplicant inthesaid caseonthebasisofthe said committal and/or on the information filed by the AttorneyGeneral in consequence thereof. I shall proceed now to examine the present application by 30 which the applicant applies for leave to apply for an Order of Certiorari, and/or Mandamus and/or Prohibition, against the Ruling of the Assize Court of Limassol, delivered on the 1st June 1988, rejecting the preliminary objections raised on behalf of the applicant prior to hisarraignment, and also respecting the refusal 35 oftheAssizeCourtofLimassolbyitsDecision delivered onthe7th 356 1 C.L.R. In re EUlnas A. Loizou P. June, 1988, to reserve a Question of Law for the opinion of the Supreme Court under Section 148 of the Criminal Procedure Law, Cap. 155for leavetoapply foran Orderof Mandamus and/ or Prohibition and/or Certiorari. 5 Theapplicantwasonthe5th February, 1988,committed bythe DistrictCourtofLimassolfortrialbytheLimassolAssizeCourt, for twenty offences relating to stealing allegedly committed on variousdatesduringtheperiodofFebruary 1982andJuly1983as perthe charge-sheet on whichhe wasso committed. 10 The Attorney-General of the Republic filed inthe Assize Court of Limassol aninformation charging the applicant with thirty-one offences committedbetweenthe 12thFebruary1982andthe28th July,
- On the 25th May, 1988, when the applicant was about to be 15 arraigned before the Limassol Assize Court, but prior to his such arraignment heraisedcertainpreliminaryobjections onwhich the Assize Court gave its ruling on the 1st June,
- Following the said Ruling learned counsel for the applicant applied on the 3rd June, 1988, to the Assize Court for four 20 Questions of Lawarisingout of the said Ruling of the Court to be reserved for the opinion of the Supreme Court pursuant to Section 148oftheCriminalProcedure Law,Cap. 155.TheAssize Court on the 7th June, 1988, rejected the applicant' s said application and refused to reserve any Question of Law for the 25 opinion of the Supreme Court. On the 9th June, 1988, the applicant filed this application whereby hesought the reliefssetoutinthisapplication and which Ineed not reproduce here verbatim. The grounds upon which the said reliefs or any of them are 30 soughtare the following: 35
(1)The committal of the Applicant for trial before the LimassolAssize Court forthe offences charged inthe Charge Sheet inCriminalCaseNo.22446/87 (Exhibit1)madebythe District Court of Limassol was invalid in law and of no effect the said invalidity being an error of lawapparent on the face of the record and/or was made in excess of the Court' s jurisdiction or power in that the offences charged in the said Charge Sheet were not disclosed inthe statements produced to and/or examined by the Court (Exhibit6). 357 A. Lolzou P. InreElIlnas
(1988)
(2)The saidcommittal wasinvalidandofno legaleffect the said invaliditybeinganerroroflawapparentonthefaceofthe record in that there was no evidence and/or sufficient evidence inlaw (asdisclosed inthesaid statements produced to theCommittingJudge-Exhibit6)tojustifythecommittalof 5 theApplicantfortrialbefore theAssizeCourtofLimassoland/ or inthatthe said statements didnot disclose the offences for . which the Applicant wasso committed.
(3)The Assize Court of Limassol acted in excess of jurisdiction and/or refused toassumejurisdiction whereitwas 10 dutybound to do so and/or erred in law such error being an error of lawapparent onthe face of therecord inrulingthatit had no jurisdiction and/or competence to entertain the preliminary objections raised by the Defence before the arraignment of theApplicant. 15
(4)The Assize Court of Limassol acted in excess of jurisdiction and/or refused toassumejurisdictionwhereitwas dutybound todosoand/or erred inlawitssaiderrorbeing an error of law apparent on the face oftherecordinrulingthatit had nojurisdictionorcompetencetoentertainthepreliminary 20 objections raised by the Defence before the arraignment of the Applicant tothe effect thatthe committal of the Applicant for trial before it was invalid thereby nullifying the whole proceedings before it and/or that the Information before it (Exhibit2)wasdefectivebecausetheoffences chargedtherein 25 were not disclosed in the statements produced to the CommittingJudge. (Exhibit6).
(5)The AssizeCourt of Limassol oughttohave considered the preliminary objection raised by the Defence before arraignment totheeffect thattheInformation wasdefective in 30 that the offences contained therein were not disclosed in the statements produced to the Committing Judge (Exhibit 6) and/or that the trial Court had nojurisdiction orpower to try the said Criminal Cases asthere had been no proper orvalid committal oftheApplicantfortrialbytheAssizeCourtand/or 35 because the committalproceedingsweredefective inthat the accused was committed for trial for offences not disclosed in thestatements(Exhibit6)producedtotheCommittingJudge.
(6)TheAssizeCourtofLimassolerredinlawandsuch error was an error of law apparent on the face of the record in 40 358 1 C.L.R. InreElIlnas A. Lolzou P. holding that ithadjurisdiction orpower toproceed withthe trialon.thebasisoftheInformation before it(Exhibit2)even though such'Information may have been defective for the reasonsstatedabove. 5 10 15 20
(7)The Assize Court of Limassolought tohave looked at thestatements(Exhibit6)producedtotheCommittingJudge during the committalproceedingsto examine whether they disclosedtheoffences containedintheInformation (Exhibit2) and its failure to do so amounted to a refusal to exercise jurisdiction where it was dutybound to do so and/or to an erroroflawapparent onthefaceoftherecord.
(8)The AssizeCourt of Limassol ought tohave made the distinction between a mere·irregularity and an irregularity going to the root of the proceedings rendering the ' proceedings a-nullity and itsfailure todosoamounted toan erroroflawapparentonthefaceoftherecord...
(9)The said Ruling and/or Order of the District Courtof Limassol dated 5.2.1988 wasinexcessofthejurisdiction or powers'of the Court in that the offences contained in the ChargeSheet(Exhibit1)werenotdisclosedbytheevidence contained in the statements produced to the Committing Judge. 25
(10)The said Rulingand/or Order of the District Courtof Limassoldated 5.2.1988 wasinexcess ofthejurisdiction or "powers of that Court in that there was no evidence and/or sufficient evidence in law to justify the committal:of the Applicanttotrialbefore theAssizeCourtofLimassol. . 30
(11).All steps and/or proceedings flowing fromand/or consequentupon thesaidcommittalarenullandvoidandof nolegaleffectsincetheyflowfromand/oraredependenton the said invalid committal and are vitiated by the invalidity thereof;and/or 35 •
(12)The Assize Court of Limassol willproceed to trythe Applicant on the basis of the said committal and the said subsequent steps and/or proceedings (filing of Information, rejection of preliminary objections etc.) unless prohibited from doingsobyanOrderofProhibition. 359 A. Lolzou P. InreElIlnas
(1988)
(13)After correctly ruling that the stage at which the application by the Applicant (through hiscounsel) was made to the Assize Court of Limassol for the reservation for the opinion oftheSupreme Courtofthefourquestionsoflawthat arose from theAssizeCourt' sRulingdated 1.6.1988(Exhibit 5 4)wasaproperone,theCourtwasunjustified and/orfailed to exercisejudiciallyorproperly oratallitsdiscretionin rejecting the said application of the Applicant and refusing to reserve such questions of law or any of them for the opinion of the Supreme Court. In so acting the Court erred in law and its 10 error wasapparent on theface of the record.
(14)Viewing, inter alia, the principle of equality of amis safeguarded bytheConstitution, theAssizeCourtof Limassol was inthe circumstances dutybound to reserve the questions of lawraisedbytheApplicant for the opinion oftheSupreme 15 Court and itsfailure todosoamounted toarefusal toassume jurisdiction where it was dutybound to do so and/or to an error of lawapparent on the face of the record.
(15)The decision of the Assize Court of Limassol not to reserve for the opinion of the Supreme Court the said 20 questions of law did in the circumstances and/or having regard to the grounds given amount to a refusal to assume jurisdiction where the Court ought tohave done soand/or to excess or abuse of jurisdiction or powers and/or an error of lawapparent on the face ofthe record.» " The objections raised on behalf of the applicant before the Assize Court, the arguments advanced, the authorities cited in support thereof as well as the reply of the Deputy Attorney General,aresetoutinitsRulingofthe 1stJune, 1988.Forthesake of brevity I do not intend to reproduce here verbatim the analysis 30 made bythe AssizeCourt of thevariousarguments. Itis sufficient to refer to the authorities quoted in the said Ruling. The case of Philippos HadjiGeorghiou v. The Republic, 1964 C.L.R. 156; and Vassilios Lazarou Mouyios v. The Police
(1974)2 C.L.R. 23 were cited as regards the issue as to the jurisdiction of an Assize 35 Court, which had been raised atthe trialafter a plea of not guilty and whichshould, accordingtotheapproach ofthisCourtinthose cases not have been treated as triable concurrently with the question of guilt but that such issue should have been raised before plea and should have been tried before the trial. Also 40 360 1 C.L.R. 5 InreEUlnas A. Lolzou P. reference ismadetothetextbookofCriminalProcedureinCyprus by Loizou and Pikis at p. 91 regarding the lack of substantive jurisdiction to take congnizance of the offence, and the Assize Courtconcluded onthisissue.-thatitwastheproperstageatwhich theobjection astothejurisdiction should have been raised. Theythendealtwiththeposition oftheLawinEnglandastothe circumstances in which it is proper for the Judge to order an amendment oftheindictment.Inthatrespectreference wasmade to Archbold Criminal Pleading Evidence and Practice 42nd 10 Edition pp.48-49. Learned counsel fortheapplicantrelied onthecaseofR.v. Hall [1968] 2 All E.R. 1009 in order toprove that an information is defective ifanindictmentchargesoffences whicharenotdisclosedin the depositions and fails to charge an offence which isand so such 15 indictment lacks the most essential quality of an indictment. Also reference was made to the case of R. v. Gee [1936]2 AllE.R. 89 which construed the meaningof the term «committed fortrial»as meaning lawfully committed and legally committed for trial and once the provisions of the Actwere not complied with, no billof 20 indictment could be preferred against the accused and so the documentbefore theCourtwasnotanindictmentandthe accused couldnotbe tried. Asregardsthequashingofanindictmentreference wasmadeto Archbold (supra), paragraph 1-110 where separate analysisis 25 made of theposition of the Common Lawand thatofthe Statutes in England. Reference was made also to the cases of R. v. Chairman of London County Session Ex ParteDowries
(37)Cr. App.R. 148;JohnMcKinsie Jones and Others{1974) 59Cr.App. R. 120; R. v.MacDonnell [1966] 1AllE.R. 193and it concluded 30 that«withtheCaseLawreferred toearlieritisclearthatinthe case referred to by Mr. Cacoyannis, even in England it is not permissible,andthetrialCourthasnorighttorefertotheevidence and/or depositions which were placed before the committing Judge in order to decide ifand whether the charges faced by the 35 accused are disclosed, that is only permissible in the other instanceswhich do not coverthe objection of Mr. Cacoyannis.» The Assize Court then relied on the case of R. v.MustafaHaiti andAnother^ C.L.R.65,and concluded thatiftheobjection was considered asreferringtoamistakeofthecommittingJudgeinthe 40 sense of wrong exercise of hisdiscretionary power tocommit the 361 A.LolzouP. InreElIlnas
(1988)accused for trial before the Assize Court on the basis of the statementsfrom which none oftheoffences forwhichthe accused ischarged are disclosed, the Assize Court again was deprived of the right to examine that position in view of the provisions of Article 155 of the Constitution as the only competent Court to decide such a subject is the Supreme Court and not the Assize Court. 5 Iamon thewhole inagreementwiththeapproach of theAssize Court on these issues and I need not proceed any further. Needless, however, to say that the aforesaid situation does not 10 arise in the present proceedings before me as I have already refused leave to apply for an Order of Certiorari and/or Prohibition on the ground that there was sufficient evidence to commit the accused for trial and these legal points need not be resolved. Thisapplication therefore fails asregardsthisleg. Coming now to the second leg of these proceedings which relatestothe refusal of the AssizeCourttoreserve four Questions of Lawforthe opinion oftheSupreme CourtIhave examined the Ruling of the Assize Court which had been appended to the 20 application as Exhibit 5 and I am in full agreement with their approach. They have exercised their discretion properly and ina manner consistent withthe approach ofthisCourtina number of cases including, inter alia, The Republic v. Georghios Theokli Kalli,1961 C.L.R. 266; In Re Charalambous and Another
(1974)25 2 C.L.R. 37; The Police v.Nicolaos Sampson
(1977)2 C.L.R. 1, regarding the desirability that the trial of a Criminal case and especially an Assize case should not be interrupted unduly. The application fails also asregardsmislegtoo. For all the above reasons the leave applied for is therefore 30 refused and thepresent application isdismissed. Application dismissed. 362 15