(1988)1988January 23 [MALACHTOS,J.] INTHEMATTER OFANAPPLICATIONBYORONBEHALFOF KYRIACOSKYPRIANOUFORLEAVETOAPPLYFORAN ORDEROFCERTIORARI, and INTHEMATTER OFARULINGOFTHEDISTRICTCOURTOF LIMASSOLINCRIMINALCASENO.31904/86, (ApplicationNo. 4/88). Prerogative Orders—Certiorari—When itlies—Itcannot be used asa cloak ofanappeal in disguise. CriminalProcedure — Chargesheet containing largenumber of counts -r— Undesirabilityof such a course— The authorities, however, do not establishanyrigidrule. ^ The applicant faces chargeson 18countsforobtaining money by false pretences.ThetrialCourtdismissed hisapplication for separate trialson each count.Asa resulttheapplicantfiled thisapplication for leave to apply for an Order of certiorari, quashing the aforesaid ruling. 10 Held, refusing leave and dismissing the application:
(1)Certiorarilieswhereitappearsonthefaceoftherecordthatthe decision of the inferior tribunal was erroneous in point of law. Itis plainthatcertiorariwillnotissueasthecloakofanappealindisguise.
(2)Inthe present application twopoints fallforconsideration: 15 (a)Whether the decision ofthe Court below iserroneous in point oflawon the face of the record, and (b) Whether by the inclusion of so many counts in one change sheet the applicant isprejudiced inhis defence.
(3)As regards the first point, the answer is in the negative. The 2 0 charge sheet has been framed in conformity with section 39 of the( Criminal Procedure Law, Cap. 155 and it cannot be opened to objection inrespect ofitsform or contents.
(4)Asregardsthesecond point, itisclearfrom theauthoritiesthat it is undesirable for a large number of counts to be joined in one 2 5 40 1 C.L.R. 5 Inre Kyprianou ^chargesheet/The relevant observations intheauthorities {Akritasv. liegina, 20C.L.R. 110andMantisv.ThePolice
(1981)2C.L.R. 234) do not create a rigid rule. Obviously, in this case the counts were included in one_charge sheet in order to show the extent of the criminality a"nd the system under which the alleged offences were committed. Application dismissed. Casesreferredto: 10 ReKakos
(1985)1C.L.R. 250; R. v.Northumberland Compensation Appeal Tribunal[1951] 1 K.B. 711; Akritasv.Regina, 20C.L.R. 110; Mantisv. The Police
(1981)2 C.L.R. 234. Application. 15 20 Application for leave to apply for an order of certiorari to remove intotheSupreme Court ofCyprus and quash the rulingof the District Court of Limassol in Criminal Case No. 31904/86 whereby applicant's application for separate trials of the eighteen counts he was charged in the above case was dismissed. L. Clerides, for the applicant. Cur. adv. vult. MALACHTOS J.: gave the following judgment. The applicant, who was the accused in Criminal Case No. 31904/86, before the District Court of Limassol, charged under eighteen counts for 25 obtaining money by false pretences contrary to section 298 of the Criminal Code, Cap. 154, pleaded not guilty on all counts. On the 31st October, 1987 counsel for applicant applied for separate trialsofthe eighteen counts on the ground thata trialwith so many counts contained in o n e charge sheet would seriously 30 prejudice the accused in his defence. On the 18th November, 1987 the court delivered its reserved ruling by which the application on behalf of the accused was dismissed. Ithas been submitted by counsel for applicant that the ruling of 3 5 the District Court of Limassol is erroneous in law on its face and, consequently, should be removed to the Supreme Court for the • 41 Malachtos J. Inre Kyprianou
(1988)purpose ofbeingquashed. Insupportofhisargument counsel for applicant made reference to the case of Akritas v. The Police, 20 C.L.R. 110 and Constantinides v. The Republic
(1978)2 C.L.R. 337. Ithas also been submitted that the applicant has a prima facie 5 arguable case inview of the fact thatthe countsrelateto different complainants, different sums ofmoney, different dates and there is no nexus between the various counts and the period of time duringwhichthealleged offences were committed isofaduration of more than twoyears. 10 The Prerogative Order of Certiorariisone oftheOrders vested exclusively within the jurisdiction of theSupreme Courtby virtue of Article 155.4 of the Constitution and is addressed to inferior courtsortribunalstokeepwithintheirjurisdictionand observethe law. Certiorari lieswhere itappears on the face of the record that 15 the decision ofthe inferior tribunalwaserroneousinpointoflaw. Itisplain that certiorari will not issue as the cloak of an appeal in disguise.Itdoesnotlieinordertobringupanorderordecision for rehearing oftheissueraised intheproceedings.Itexiststocorrect error of lawwhere revealed onthe face of an order ordecision or 20 irregularity, orabsence of, orexcessof, jurisdiction where shown. The control is exercised by removing an order or decision, and then by quashing it. (See In Re Kakos
(1985)1 C.L.R. 250, following R. v. Northumberland Compensation Appeal Tribunal " [1951] 1K.B.711). 25 Inthe present application twopointsfall for consideration: 1.Whether thedecisionofthecourtbelowiserroneousinpoint of lawon the face ofthe record, and 2. Whether by the inclusion of so many counts in one charge sheet the applicant isprejudiced inhisdefence. As regards the first point, the answer is in the negative. The charge sheet hasbeen framed inconformity withsection39ofthe Criminal Procedure Law, Cap. 155 and it cannot be opened to objection inrespect of itsform orcontents. Asregardsthe second point, itisclear from the authorities that 35 itis undesirable for a large number of counts tobe joined in one chargesheet.Inthecase ofAkritasv.Regina, 20C.L.R. 110,cited by counsel for applicant, atpage 112,the following isstated: 42 30 1 C.L.R. 5 10 15 20 25 In re Kyprianou Malachtos J. «Thereisonefurther observationwewouldmake regarding the information. In this case, the information in substance charged the appellant with falsifying accounts on 20 different occasions. We doubt whether it was necessary to make the information solong,or,ifitwasnecessary,thetrialmighthave proceeded on a certain number only. Inthe case of Hudson (36Cr.App.R.94)theaccused was charged on 33 counts most of which related to breaking and enteringandlarceny,withanalternativecountforreceivingin each case.The learned Lord Chief Justice atp.95-96 stated: 'The Court has on many occasions pointed out how undesirable it is that a large number of counts should be contained inone indictment.Whereprisonersareontrialand have a variety of offences alleged against them, the prosecution oughtto be put on their election and compelled to proceed on a certain number only. Quite a reasonable number of counts can beproceeded on, say, three, four, five or six, and then, if there is no conviction on any of those, counsel for the prosecution can consider whether he will proceed with any other counts in the indictment. Ifthere isa conviction, the other counts can remain on the file and need not necessarily be dealt with unless this court should for any reason quash the conviction and order the otherstobe tried. Butitisundesirablethatasmanycountsasweretriedtogether inthiscaseshould be tried together'». AlsointhecaseofMantisv. The Police
(1981)2C.L.R.234,the above observations have been reiterated by this court in its appellate jurisdiction, where atpage 236 we read: 30 35 40 «We would like to add, further, that we have noted, particularly, thefollowing observations inthejudgment of the trialJudge: 'Before concluding thisjudgment, I feel bound to stress thattheprocedure followed bytheProsecution in framing the charge sheet, by adding 19countsrelating to serious offences and committed on various dates and within a long period of time is not only inadvisable but also unorthodox as itdeprivesthe accused of the opportunity to defend his case properly.and the Prosecution to present itscase and generally itisnot for the interestsof justice and inthe future itshould be avoided'. 43 Malachtos J.
(1988)In re Kyprianou Wehighlightthe viewsexpressed bythetrialJudgeinthe abovepassageandwehopethat,infuture, thejoinderoftoo many counts,such asthoseinthepresent case,willnottake placewithoutadequate reasonsjustifying suchacourse». Theabove observations, however, donotcreateanyrigidrule 5 as it appears from the case of Mantis, supra, where adequate reasonsjustify such a course. Obviously, inthe case inhand the eighteen countswereincludedinonechargesheettodisclosethe extent of criminality and the system under which the alleged offences havebeen committed. 10 Fortheabovereasons,theapplication isdismissed. Application dismissed. 44