clr/1988/1988_1_459.pdf

(1)of the Courts of Justice Law, 1960 (Law 14/60) — They are inferior Courts — Therefore, prerogative orders canbe addressed to them. Prerogative Orders — Certiorari— When itlies. Criminal Procedure — The Criminal Procedure Law, Cap. 155, s.148

(1)— Question of Law Reserved — It is a question of law arising during the trialat a stage at which'it has to be decided to enable the trialto proceed. CriminalProcedure — TheCriminalProcedure Law, Cap. 155, sections 41 and 110— Joint trial— Separation of—Principles governing the exercise of the discretion. 459 Inre Attorney-General

(1988)The three accused before the Assize Court were jointly charged under9 counts as follows: Count 1:ConspiracytokillPanikkosMichaelofLimassol,contrary tosection 217 ofthe Criminal Code, Cap. 154. Counfs 2,3, and 4: Premeditated murder contrary to sections 203

(2),20and21oftheCriminalCode,Cap.154,asamendedby Law 3/62 and 86/83, of Panikkos Michael, Christakis Panikkou Michael and Michalakis Panikkou Michael, alllateof Limassol. 5 Counts 5,6,7,8 and 9: Forpossessing on various dates explosive substances without a licence contrary to sections 4

(4)(d), 5(a)(b) of 10 the Explosive Substances Law,Cap. 54. On counts 5 and 6 accussed 3 is charged alone, on count 9 accused 2 and 3 are charged together and on counts 7and 8allthe accused are charged together. All three accused pleaded not guilty. Soon after such plea the 15 prosecution applied to the Assize Court to order separate trialsof accused 1on counts 1, 2, 3, 4, 7 and 8 and accused 2 and 3 on all counts. The Assize Court dismissed the application. This decision is the subject-matter of application 115/88 for an Order of certiorari 20 quashing it. The Attorney-General applied to the AssizeCourt unders. 148

(1)ofCap. 155foreightquestions*oflawtobe reservedforthe opinion oftheSupremeCourt.TheAssizeCourtdismissedtheapplicationon the ground that none of the 8 questions fall within the ambit of 2 5 section 148

(1)as a ground of law. As against this decision, application 110/88 was filed for an order of certiorari and mandamus. The firstofthe questions,whichtheAttorney-General askedtobe reserved for the opinion of theSupreme Court, readsasfollows: 30 Whether the decision of the Assize Court is contrary to the Constitution and the Law because in the way itwasdrafted, has as result, an indirect judicial interference with the powers of the Attorney-General by virtue of Article 113.2 of the Constitution and section 154ofthe CriminalProcedure Law,Cap. 155. Counsel fortheaccused raisedbefore thisCourttheissuewhether orders inthe natureof certiorariandmandamuscanbeaddressed to •Thequestionsarequotedatpp.463-464post 460 35 1 C.L.R. I n re Attorney-General Assi2e Courts, which, in their submission, are not infenor, but supenorCourts 5 Held, dismissingboth applications

(1)Itis clear from the wording of Article 152 1 of the Constitutionthat an Assize Court,which is established undersection 3

(1)of Law 14/60 is an infenorCourt 10

(2)This Court is of the opinion that the Assize Court nghtly exercised itsdiscretionarypower anddid notorderseparate trialsof theaccused Thenumberof factorsmilitatingagainstsuchaviewwas given intheirdecision,thestrongest onebeingthevery natureof the charges, as theyare framed in thecharge sheet 15 20 In any event and as it has been held in Re Maroulletti

(1971)1 C L R 226at243,244«certioranliestocorrectanerroroflawwhere revealed ontheface of anorderordecision,orirregulanty,orabsence of, orexcess of, junsdictionwhereshown Thecontrolisexercised by removinganorderordecisionandthen quashingit Certiorariwillnot issue as thecloak of anappeal indisguise, anditdoes nothetobnng up an order of decision of reheanng of the issue raised in the proceedings» Inthecase underconsiderationitcannotbesaidthatthereisa legal erroronthe face of theproceedings andso Application No 115/88, cannot succeed

(3)All the questions asked tobe reserved, exceptthefirst, arenot questions of law 25 Thefirst onemaybeconsideredasaquestionof lawbutitdoesnot fall withmtheambitofsection 148

(1)asitdidnotansedunngthetnal at a stage at which ithastobe decided inordertoenable thetnalto proceed Applications dismissed Casesreferred to 30 R ν Patents Appeal Tnbunal ExParteChampions Paper andFibre Co [1957] 1All ΕR 227, R ν Patents Appeal Tnbunal Ex Parte Baldwin and Francis Ltd [195911 Q Β 105, CheshireJustices,ExParteHenver [1912] 1 0 8 L T 374, 35 R ν Ministerof Health ExParteCommittee of Visitorsof Glamorgan County Mental Hospital [1938] 4 All ΕR 32, 461 InreAttorney*GeneraI

(1988)TheRepublicv.TheΛisizeCourtofKyrenia ExParte TheAttorneyGeneraloftheRepublic

(1971)2C.L.R. 222; RePsaras

(1985)1C.L.R. 561; Oueissv.TheRepublic

(1987)2C.L.R.49; R. v.Bames,R.v.Richards [1940] 2AllE.R. 229; 5 R. v.GrayandOthers [1969] 3AllE.R. 941; D.P.P. v.Merriman [1972] 3AllE.R. 42; TheRepublicv. Pierides

(1971)2C.L.R. 181; Shawv. Reckitt[1893] 2Q.B. 59; R. v. Shannon[1974] 2AllE.R.1009; 1 0 ExParteLoukiaK. Marouiletti

(1971)1 C.L.R. 226; CharalambousandAnotherv. Republic

(1974)2C.L.R. 37. Applications. Applications by the Attorney-General of the Republic for an order of certiorari to remove intotheSupreme Courtandquash 15 the judgment of theAssize Courtof Nicosia inCriminal CaseNo. 23069/87 dated 20.6.88 andforanorder of mandamus ordering the Assize Courtof Nicosia toreserve intheaboveCriminalcase eight legal questions fortheopinion of the Supreme Court. M. Triantafyllides, Attorney-General oftheRepublic with Gl. HjiPetrpu andA. Vassiliades. Chr. Pourgourides with R. Erotokritou for the accused. 20 Cur.adv. vult MALACHTOS J. read the following judgment. These two related Applications for prerogative Orders of Certiorari and 25 Mandamus, were filed by the Attorney-General of the Republic after obtaining therelevant leaveof the Court. In Application No. 110/87 we areconcemed:(

1. a)With the issue of an Order in the nature of Certiorari to remove thejudgment of theAssizeCourtofNicosiadated20.6.88 30 before theSupreme Courtforthepurposeofbeingquashed;and (
2. b)an Order in the nature of Mandamus ordering the Assize 462 \ 1 C.L.R. In reAttorney*General MaJachtos J. Court of Nicosia, which consists of Chr. Artemides, P.D.C., Y. Constantinides, S.D.J, and St. Nathanael, D.J., to reserve in Criminal Case No. 23069/87, eight legal questions for the Opinion of the Supreme Court. 5 The said legal questions are the following: 1. Whether the decision of the Assize Court iscontrary to the Constitution andthe Lawbecause inthewayitwasdrafted, hasas a result, indirect judicial interference with the powers of the Attorney-General byvirtueofArticle113.2oftheConstitution and 10 section 154of the Criminal Procedure Law, Cap. 155. 2. Whether the decision of the Assize Court iscontrary to law because, as it appears from itsreasoning, was based wrongly on the assumption that the two separate trials of the accused would take place before the same Assize Court and not before two 15 different AssizeCourts. 3. Whether the decision of the Assize Court is contrary to the Constitution andthelawbecauseitwronglyadopted theviewthat the retaining bythe accused of common advocates didnot permit the separation of theirtrials. 20 4.Whether the decision of the AssizeCourt iscontrary to Law because for the reasons given wrongly results to the conclusion that the two separate trials will be against the right and just administration ofjustice and thepublic interest. 5. Whether the decision of the Assize Court is contrary to law 25 because wrongly relied on the view that the power of the Prosecution toapply for separate trialsof the accused is confined to the existing practice on the basis of which at the joint trial of accused one of them pleads guilty to the charge and later gives evidence against his co-accused. 30 6. Whether the decision of the Assize Court iscontrary to Law because, as it appears, wrongly takes the view that with the formation ofthechargesheettheprosecution hasalreadymadeits choice for ajoint trialof allthe accused. 7. Whether the decision of the Assize Court iscontrary to Law 35 because itwrongly decidesthatthe waythe chargeswere framed in the charge sheet, is a serious reason for the claim of the prosecution forseparate trialsof theaccused, to be rejected, and 463 Malactitos J. In re Attorney-General

(2),20and 21oftheCriminalCode,Cap. 154,as amended byLaw3/62 and 86/83, ofPanikkosMichael,ChristakisPanikkou Michael and Michalakis Panikou Michael, alllate of Limassol. Counts 5, 6, 7, 8 and 9: For possessing on various dates 25 explosivesubstanceswithoutalicencecontrarytosections4

(4)(d), 5(a)(b) of the Explosive Substances Law, Cap.

1. On counts 5 and 6 accused 3 ischarged alone and on count 9 accused 2and3arecharged togetherandoncounts7and8allthe accused are charged together. 30 On the9th June, 1988,the threeaccused werecharged before the Assize Court and pleaded not guilty on all counts.Soon after their plea the prosecution applied to the Assize Court to order separate trials of accused 1 on counts 1, 2, 3, 4, 7 and 8 and accused 2 and 3 on allcounts. ^ The interim decision of the court dismissing thisapplication for separatetrialswasdelivered on 13thJune, 1988.Thisdecision, as 464 1 C.L.R. Inre Attorney-General Malachtos J. already stated, isthe subject matter of Application No. 115/
2. Immediately after this decision the Attorney-General of the RepublicappliedtotheAssizeCourttoreservetheeightquestions of law referred to earlier in thisjudgment, for the opinion of the 5 Supreme Court under section 148

(1)of the Criminal Procedure Law, Cap. 155.Thissection readsas follows: 10 «148

(1):Any Court exercising criminaljurisdiction may, and upon application by the Attorney-General shall,atany stage of the proceedings, reserve a question of law arising during thetrialofanypersonfortheOpinionoftheSupreme Court.» The Assize Court, by its judgment of 20.6.88, dismissed the r-pplication of the Attorney-General on the ground that none of the 8 questions fall within theambit of section 148

(1)asa ground of law. 15 Asagainstthisdecision Application No. 110/88was filed. Service of both Applications was effected on counsel for the three accused who, on 29.6.88,filed his opposition. In the affidavit in support of the opposition, besides the allegations that the Assize Court acted within itsjurisdiction and 20 exercised its discretionary powers properly, it isalso stated that the Orders of Certiorari and Mandamus applied for, cannot be issuedastheyaredirectedagainstthedecisionsofanAssizeCourt, whichisa superior court, whereassuch orders can onlybe issued asregardsdecisionsof inferior courts. 25 Atthisstage,forobviousreasons,Iconsider itpropertodispose of this issue because if it is decided in accordance with the view •takenbycounselforthethreeaccused,then thiswillmeantheend of the present proceedings. Counsel for the three accused insupport of hissubmission that 30 <*nAssizeCourtisasuperiorcourt,referred tothefollowing cases decided bytheCourtsinEngland, where itisshown thatanassize court is a superior court. These cases are: R. v. Patents Appeal TribunalEx Parte Champions Paper and FibreCo., [1957] 1 AH E.R. 227,/?. v. Pafenis Appeal Tribunal Ex Parte Baldwin and 35 FrancisLtd., [1959]1 Q.B.\05,Cheshire JusticesExParteHenver [1912] 108L-.T. 374 and R. v. Minister of Health Ex Parte Committee of Visitors of Glamorgan County Mental Hospital [1938]4AllE.R. 32. 465 Malachtos J. In re Attorney-General

(1988)Counsel for the accused alsosubmitted that itisalso clear from theabove authorities that thedecisivefactor astowhetheracourt isa superior or inferior one isnot the rank of thejudge or judges constituting itbuttheextentofitsjurisdiction andanassizecourtin Cyprus has unlimited jurisdiction to try any offences committed 5 anywhere in the territory of the Republic. He further submitted that the question whether the assize court isa superior or inferior court, was never decided byourcourtsand referred tothe caseof The Republic v. The Assize Court of Kyrenia Ex Parte The Attorney-General of the Republic

(1971)2 C.L.R. 222 where the ifj Full Bench of this Court assumed jurisdiction intwo applications on behalf of the Attorney-General under Article 155.4 of the ConstitutionforOrdersofCertiorari andMandamusinrelationto the ruling of the Assize Court in Kyrenia dated 7th July, 1971, refusing an application made by counsel for the prosecution 15 asking theAssizeCourt toreserve fortheOpinion ofthe Supreme Court three questions of Lawunder section 148

(1)ofthe Criminal Procedure Law, Cap. 155. He also referred to the case ofPsaras

(1985)1C.L.R. 561,a caseconcerningan application forleave to apply for an Order of Prohibition and Certiorari where, at page 20 564, the following isstated byStylianides, J.: «In Cyprus before Independence the Assize Courts were presided either by the Chief Justice or by one of the Puisne Judges of the Supreme Courtand, therefore, they were not inferior Courts.TheAssizeCourtsestablished bytheCourtsof 25 Justice Law, 1960 (Law 14of I960), enacted pursuant to the provisions of Article 152.1 of the Constitution that provides thatthejudicialpowershallbe exercisedbytheHighCourtof Justice (now the Supreme Court) and such inferior Courts as may, subject to the provisions of this Constitution, be 30 provided bya Lawmade thereunder, are inferior Courts and, therefore, theyareamenabletoordersinthenatureof habeas corpus, mandamus, prohibition, quo warranto and certiorari. The Supreme Court has exclusive jurisdiction to issue such orders.» Counsel for the accused pointed out that inthe firstcase itwas taken for granted thattheAssizeCourtwasaninferior courtandin the case of Psaras,supra, itisobiteras thispoint wasnot in issue before the trialjudge. On the other hand, the Attorney-General submitted that the 40 argument of counsel for the accused isa correct one,as faras the 466 35 1 C.L.R. I n re Attorney-General MalactitosJ. EnglishCourtsare concerned, butithasno application inCyprus because of Article 152.1 of our Constitution and section 3(l)(a) and (b)of the CourtsofJustice Law, 1960 (Law 14/60). Article 152.1 of the Constitution and section 3(l)(a) and (b)of 5 Law 14/60, readas follows: 10 15 «152.1:Thejudicialpower,otherthanthatexercisedunderPart IXbytheSupremeConstitutionalCourtandunder paragraph 2 of this Article by the Courts provided by a communal law, shallbeexercisedbyaHighCourt ofJusticeand such inferior courtsasmay,subjecttotheprovisionsofthisConstitution, be provided bya lawmade thereunder». «Section 3

(1):There shallbe established under thislawthe following courts to exercise such jurisdiction and powers as are conferred upon thembythislaworany otherlawin force for thetime being:(a)DistrictCourts; (b)AssizeCourts.» Itisclear from the wording of Article 152.1of the Constitution that an Assize Court, which is established under section 3

(1)of 20 Law 14/60 is an inferior court and I must say that 1 am in full agreement with the submission of the Attorney-General on this issue. Thenextissuetoconsider isthejudgment oftheAssizeCourtof 13.6.88, the subject matter of Application No. 115/88. 25 ThereasonwhytheAttorney-General applied forseparatetrials isbecause the-evidence of accused 1issubstantial for thecaseof theprosecution againstaccused2 and3, inordertobecalledasa witnessfortheprosecution againsttheothertwoaccused, thetrial of whom will follow. 30 InitsjudgmenttheAssizeCourt repeatsthebasicprinciplesof the law, thatthejointtrialof co-accused persons isvery desirable in cases where the sequence of events is based on common ground.Theadvantages ofajointtrialarereferred tointherecent case of Oueiss v. The Republic

(1987)2 C.L.R. 49. The same 35 principles apply in England and indicatively the Assize Court referred tothecaseofR.v.Barnes, R. v.Richards[1940]2AllE.R229,Rv. Grayand Others [1969] 3 All E.R. 941,where itisalso stated thatthepower toorderseparatetrialsisinthediscretionof 467 Malachtos J. In re Attorney-General

(1988)the court and should be exercised judicially inthe general interest of the administration ofjustice. The Assize Court then referred to sections 20 and 21 of the Criminal Code, Cap. 154, as to principal offenders and offences committed byjointoffenders inprosecution ofcommon purpose, and the objection of counsel forthe accused tothe application of the prosecution and enumerated the following five grounds on which the opposition isbased:- 5 (a)injustice willresult tothe accused. (b)therightoftheaccused tohaveanadvocate oftheirchoice, 10 (c)the application isagainst the public interest, (

1. d)there is parallel remedy for the prosecution more appropriate than the application which hasbeen submitted to the court, and (
2. e)the separate trial of the accused is againsfthe interests of 15 justice. Short reference was then made to the facts of the case and in particular to counts 2 , 3 and 4,where theprosecution alleges that the death of the three persons was caused by the explosion of a bomb which was placed by one of the accused, whereas the rest 20 of them aided and abetted its commission, which they planned together, and for thisreason thethree of them are also facing the conspiracy charge. The Assize Court, at page 6 of the record, concluded as follows: The most serious reason for which we consider that the 25 claim of the prosecution must be rejected, is the very same nature ofthe chargesastheywereframed inthecharge sheet. The three accused are charged that they conspired between themselves and with another or other persons unknown, in order to murder Panikkos Michael. After the charge of 30 conspiracy there followed counts2, 3 and 4, where the three accused are facing the charge of premeditated murder of Panikkos Michael, Christakis Michael and Michalakis Michael. In these chargesreference ismade, besides section 203

(2)of the Criminal Code, Cap. 154, to sections 20 \ 35 and21, whichwehavecitedhereinabove.Thesetwosections render possible the charge against the accomplices as if they were principals. It is, consequently, clear from the charge 468 1 C.L.R. ' 5 1Q In re Attorney-General Malachtbs J. sheet and ithasbeen so left tobe understood that one of the accused committed the act which caused the death to the three persons, that isto say, caused the explosion, whereat the othersareaccomplicessincetheytook partinthe offence in the way which is provided by sections 20 and 21 of the Criminal Code. Therefore, separate.trial for the first accused oh the one hand and accussed 2 and 3 on the other, will be against the interests of justice as there is danger of contradictory judgments of the court inthe twoseparate trials. Furthermore, the prosecution willadduce insubstance the same evidence for the proof of the conspiracy and the murder, besides the evidence which would, be given by accused 1 againstaccused2and3twiceintheseparatetrials. 15 20 'Itwould beagainstthe publicinterestatthetrialof accused 1wherereference willbemadetoaccused2arid3whilethese accused willwait for theirtrialin other proceedings with the same evidence,which wasadduced againstthese accused. We make reference to the above in order to show that - although the court hasjurisdiction toorder separate tnalsthe procedure which would follow iftheclaimof the prosecution was,.accepted, would be against the right and just administration ofjustice.» And further down at page 8to9 of thejudgment, isalsostated 25 thefollowing: , 30 35 «Another serious reason for which we could not exercise our discretion infavour ofthe application of theprosecution,-is that which was put forward by the defence that if two separate trialsareordered, theaccused mustgiveinstructions tootheradvocatestodefend them.Weconsideritself evident that since the prosecution desires to call as a witness in the second trial the first acussed, against accused 2 and 3, this means thatthere willbe an effort toincriminate them withhis evidence. But the three accused have already engaged common advocates and they have common defence to the charges. Consequently,' it would not be possible for their advocates, who have already accepted the -relevant instructions for the common defence of the accused, to be able to appear for them, since in the second trial they must 469 Malachtos «J. In re Attorney-General

(1988)cross-examine the first accused whereas in the first trial they would defend hir-·.Seriousisalsotheground thattheaccused have already given instructions to their advocates which instructions cannot use in favour and against the accused in the two separate trials.So, the proposed separate trialof the 5 chargesprecludes counsel from both trials.Thisisan element which does not concern onlythe interests ofthe defence but alsothe wider interest of theadministration ofjustice. We do not underestimate at all the reason why the Attorney-General submitted his claim for separate trials and, 10 in particular, his honest position that the substantial element of proof of the prosecution against accused 2 and 3 is the evidence of accused 1 but as the position is today, he appears to be a hostile witness. We agree that the interestof justice isnot confined totheside onlyof the defence butalso 15 to that of the prosecution inordertopresent allthe evidence whichisavailablesothatjusticeshouldbedonebythecourt. The claimoftheprosecution mustbe considered againstall the othercriteria which we have alreadyanalysed.Thescales are tipped definitely against itsclaim,which we dismiss. 20 Withreference tothepoweroftheAttorney-General which is derived from Article 113.2 of the Constitution to discontinue any criminal proceedings before the issue of judgment, thisisnot subject tojudicial control. He hasaright to actinany way he considersproper.» ^ TheAttorney-General submitted thathisclaimforseparatetrials wasbased onsections41and 110oftheCriminalProcedure Law, Cap. 155,which read as follows: «41. The following persons may be joined in one charge and may be tried together, unless,the Court directsthat they 30 shall be tried separately, that istosay(a)persons accused of thesame offence; (b)persons accused of different offences committed in the course of the same transaction; (c)persons accused of an offence and persons who, under 35 the provisions of any enactment, are deemed to have taken part inthe commission of such offence; 470 1 C.L.R. I n reAttorney-General MalachtosJ . (

1. d)persons accused of an offence and persons accused of attemptingtocommitsuch offence; 5 10 (
2. e)persons accused of , y offence relating to stealing, criminalbreach of trust, fraudulent appropriationof property fraudulent falsification of accounts or fraudulent conversion and persons accused of κ,.aiving or taking upon themselves the control or disposition of the subject matter of such offence.» «110. Sections 40, 41 and 42 of this Law (relating .respectively to the joinder of counts,joinder of persons and the mannerinwhich parties tooffences may b». rged) shall apply mutatis mutandis to informations as they apply to charges.» It was further submitted by the Attorney-General that in the 15 decision of 13.6.88 the Assize Court made a number of legal mistakes in not ordering separate trials. Their first mistake isthat they decide^ mat separate trials cannot be ordered where the application is made on behalf of the prosecution but only on the partof thedefence andreferred toapassagefrom thejudgmentat 20 page 3 of the record, which is as follows: 25 30 35 40 «The novelty of the application of the Hon. AttorneyGeneral consists of the fact thathis claim for separate trialsi·: filed by himself whereas on thebasis of the existingpractice. this is submitted by the defence. The reason is simple. The charge sheet is formed by the prosecution that elects as to whether it will contain many counts and more than one accused. Itis a fact thatinsome law books reference is made that the court may orderseparate trials of accused persons so thattheprosecutionbe facilitated toadduce inthesecond trial evidence which comes from an accused at the first trial.No decision has been cited tothe courtand we could tracenone ourselves eitherinCyprus orinEngland where itisstatedthat ihe prosecution cansubmitanapplication for separate trialat different time in order to be able to call as a witness at the second trial an accused in thefirst trial.Our impression isthat the reterenceinthelaw books of thispossibility,isconnected with theknown practiceonthebasisofwhich during thejoint trial of accused, one of them desires to plead guilty to the charge andafterwards givesevidence against his co-accused. Itisthenwhen thecourtdecides andimposes sentenceonthis 471 Malachtos J. In re Attorney-General

(1988)accused and concludes the trial of the case in order that the prosecution will be able tocall him as a witness at the trial of therestof theaccused.So,thetrialofthisaccused isseparated from thatof the rest but inthe same proceedings.» The Attorney-General referred to the Crown Court Practice 5 1978 edition,by PeterFallonatpage 43 insupport of hisviewthat the right of the Attorney-General to apply for separate trial is not confined only in the case where during the joint trial of accused persons one of them pleads guilty tothecharge and laterhegives evidence against his co-accused. At page 43 of the said book itis 0 stated that «on the application of the prosecution separate trials may be granted where itis needed inordertoallow theCrown to call an accomplice as a witness». He also submitted that when one of the accused pleads guilty there can be noquestion for thecourtto orderseparate trials but 15 separate trials are ordered as regards accused who plead not guilty.The Attorney-General also submitted thatwhat isstated by the AssizeCourtatpage 6 of theinterimdecision of 13.6.88, and to which reference has been made earlier in this judgment, is a clear misapprehension of thelaw as initsviewwhenever thereare 20 accomplices there can be no separate trial. He then made reference tovarious passagesfrom thecase of D.P.P. v.Merriman [1972] 3 All E.R.

1. Another misapprehension of the law is the view taken by the Assize Courtthatto orderseparate trials would be the danger of the issue of two contradictory judgments. They 25 mistakenly took the view that the two separate trials would take place before thesameAssizeCourt.Hadtheydirectedtheirminds to the fact that the separate trials would take place before two different assizes, this situation would have not arisen as it is not unusual on thesame facts two different courtstogivetwo different 30 judgments. In the decision of 20.6.88 the Assize Court makes reference to this point and gives an explanation as to what was meant, something which was notpermissible todo.Ifreally thisis not what they had in mindthere canbe no harm to the interest of justice and so theirlegal error isstill greater. 35 TheAttorney-General referred topages8and9of thejudgment of 13.6.88 and pointed out thatthe reason, given atpage 9 of the judgment thatthe threeaccused have common advocates and so no separate trials can"be orctered,Is«ηπτβΙξΓwiuiiy;"as^nTs~means that whenever co-accused persons retain the same advocates, 40 472 1 C.L.R. Inre Attorney-General Malachtos J. 'then no separate trialsmaybe ordered.Theresultwillbe to place the interestofthe advocates overandabovetheinterestofjustice. It was also submitted by the Attorney-Generaj that if the Assize Court did not make the mistake to consider that the prosecution 5 .madeitschoicetojointhethreeaccused inone indictment,ifitdid not make the mistake to say that the practice of separate trialsis confined only in the case where the one accused pleads'guilty,if it did not make the mistake to consider that the nature of the charges precludes separate trials,ifitdid not make the mistake to •10 1hink,asitappears,thatthesameAssizeCourtwouldtrybothtrials and ifitdidnot makethe mistaketoconsiderthat having common advocates isa reason not to order separate trials,surely the scale could not tipagainst the prosecution. The Attorney-General then concluded his submission on the 15 'ast paragraph of the decision of 13.6.88 where the Assize Court referred tohispowersbyvirtueofArticle 113.2ofthe Constitution todiscontinue proceedingsinthepublicinterest,apowerwhichis not under judicial control, after making a finding earlier on in its judgment that toorder separate trialsisagainst the public interest. 20 This, he submitted, isan interference bythe court with the power of the Attorney-General and amounts to judicial control of his right. Asthe twoApplications are related,J propose next todeal with Application No. 110/88 before Ipronounce'on Application No. 25 115/
2. , The Assize Court in itsdecision of 20.6.88after making a short reference to the facts and after stating the eight questions, with which we are concerned, and after referring to the provisions of Section 148

(1)oftheCriminalProcedure Law,Cap. 155,statedat 30 P a 9 e 5 of thisdecision, the following: 35 «Itisclear that in the case where the application to reserve '. -a question of law ismade by theAttorney-General, the court has no discretionary power on the subject.. It has a duty to . reserve the question ofJaw for the opinion of the Supreme ·Court.Asithasbeen accepted bytheHon. AttomeyrGeneral, inallcasesthe question oflawinordertobe reserved, should be a legal one and arises during the trial according to the provisions ofsection 148

(1).See inthisrespect The Republic v. Phivos Petrou Pierides

(1971)2 C.L.R. 181, and The 473 Malachtos J. In re Attorney-General

(1988)Republic ν TheAssize Courtof KyreniaexPartethe AttorneyGeneral of the Republic

(1971)2 CL R 222 Itisthesuoinission of counselfor theaccusedthatnone of the eight questions is a question of law and that the Hon. Attorney-General in substance is pursuing an appeal against 5 the intenmdecision of theAssizeCourtallegingthatthecourt did exercise properly its discretionary power and cited the case of Shaw v. Reckitt [1893]2Q.B.59.Theonlysubject on which we are called to decide is as to whether the questions quoted earlierarelegal ornotwithintheprovisions of section 10 148

(1). Then atpage 9 to 10 of its decision theAssizeCourtstates «We have carefully considered the application of theHon Attorney-General and we must approachthesubject without any reference to anything which could be considered as 15 reexamination or explanation of the subjects which were the object of ourintenmdecision of 13 6 88 We have also aduty to make reference to thecontentsof thatintenmdecision to the degree thatitis necessary todecide if thequestions arose dunng the tnal» 20 TheAssizeCourtthenproceededandexamined thequestionsir. thelight ofthejudicial interpretation given tosection 148

(1)inthe case of The Republic ν TheAssize Court of Kyreniaex Parte the Attorney-General, supra, and at page 10 of the intenmdecision, said thefollowing, «The first question takes it for granted that our intenm decisionhad,as aresult,theindirectjudicialinterferencewith the powers of the Attorney-General The Hon AttorneyGeneral explained that whereas the last paragraph of our intenm decision,which we have already quoted,makes clear 30 the intention of the court not to interfere with his powers, definitely in any case without such intentionas a whole, this decision results to constitute interference We think that we can, for the purposes of the present procedure, note thatit cannot be considered that such a subject is the result of our 35 intenm decision Whatever has been referred to ourintenm decision was connectedwith the factors which should have been taken intoaccountintheexecution of ourdiscretionary powers thatguidelines thejudical cntena 474 25 1 C.L.R. 5 10 15 20 25 30 In reAttorney-General . Malacbtos J. T!.5secondquestiontakesitforgrantedthatthecourtrelied on the assumption that two separate trials of the accused would be before the same Assize Court and hot before two different Assize Courts.Wethinkthatwe have adutyto note that something like this does not result from our interim decision. The third question takes it for granted that the court adopted theviewthat the retaining of common,advocates by the accused, does not permit the separate trials of the accused. Ifwiththisquestionitismeantthatthecourtwrongly took into consideration the arrangements for common advocates, which was made by the accused, there is no subject of misinterpretation. But if it is meant that.the court adopted the view that it is not allowed as a matter of principle, the separation of trials for the reason ot these arrangements, then there isa matterof misinterpretation. The fifth questiontakesit forgranted thatthecourttook the view that the possibility for the prosecution to apply for the separate trials of the accused is confined to the existing practice on the basis ofwhich duringthejoint trialof accused personsoneofthempleadsguiltytothechargeandthen gives evidence against his co-accused. We do'not think that our interim·decision results that the mention oftheabovepracticewasdone withsucha meaning. The above apply also as regards the sixth question which presents the Assize Court having in mind that with the formation of the charge sheet the prosecution has already selected for ajoint trialfor allthe accused. Havinginmindall the above there can be no doubt that the questions to the degree that they are raised from our interim decision, refer to "»• factors which the court took into consideration during the execution ofitsdiscretionary power.» , The Hon. Attorney-General both before the Assize Court and before this court,-accepted that the questions would not be 35 - guestions of lawifthe matter was simply that the court exercised wrongly its discretion Hut he submitted that the. nature of the questionsbecome legalfrom thetimetheirobject is|asto whether the way of execution of the discretionary,power of the court was contrary to law and the Constitution or whether the discretionary 475 Matachtos J. In re Attorney-General

(1988)power of thecourtwas exercised withthewrong understandingof the law. Ihave carefully consideredtheable andextensive argumentsof counselappearing onbothsides and I cametotheconclusionthat as regaHs Application No. 115/88, the Assize Court rightly 5 exercised itsdiscretionary'power anddid notorderseparate trials of theaccused. The numberof factors militating against thisview was given intheirdecision,thestrongestonebeingthevery nature of the charges, as theyare framed inthecharge sheet.Tosupport thisview the Assize Court referred to the case of R. v. Shannon 10 [1974] 2 All E.R. 1009 at page 1034, where Lord Morrissaid the following: «As Ihave earlier indicated Ithink it is very desirable where there is a charge of conspirancy against A and Β thatthey should be tried together.» In Application No. 115/88 we are concernedwith the issue of 15 an order in the nature of certiorari only. In the case of R. v. President of the DistrictCourt of Famagusta ex Parte Loukia K. Maroulletti

(1971)1C.L.R.226 atpages 243,244, itisstatedthat «certiorarilies tocorrectanerrorof lawwhere revealed onthe face of an order ordecision, orirregularity, orabsence of, orexcess of, 20 jurisdictionwhere shown.Thecontrolisexercised byremovingan order or decision and then quash it.Certiorariwillnotissue asthe cloak of an appeal in disguise, and it does notlie to bring up an order or decision for rehearing of the issue raised in the proceedings.» Inthecase underconsideration itcannotbe said thatthere is a legal error on the face of theproceedings andso ApplicationNo. 115/88, cannotsucceed. Coming now to the Application No. 110/88, which is an application for certiorariandmandamus, itisuseful torefer tothe 30 case of ExParteAttorney-General, supra, atpage 227 where we read: iThus, before considering whether or not it is otherwise proper orpossible toissue an Order of CertiorarioranOrder of Mandamus we have to be satisfied that the aforequoted 35 questions, which prosecuting counsel applied -to have reserved for ouropinion,are questionsof lawwithintheambit of section 148

(1); because if that is not so then the Assize Court was not bound to reserve such questions for our 476 25 1 C.L.R. I n reAttorney-General MalachtoeJ . opinion and the present applications for Certiorari and Mandamus cannot succeed.» Having examined the eight questions in the light of the above citation, Ihave come to the conclusion that no one of them falls 5 within theambitof section 148

(1)of the CriminalProcedure Law, Cap. 155. All of the said questions, except the first one, cannot even be considered as questions of law. The first one maybe considered as aquestion of law but it does not fall within theambit of section 148

(1)as itdid notarise during 10 the trial at a stage atwhich ithas to be decided in order to enable the trial to proceed. In the case of C/7ara/am£>ousancMnof/7er

(1974)2C.L.R.37 at page 42, we read: 15 20 25 30 «Ά question of law arising during the trial' means only a .clttestioh.oflaw arising duringthe trialatastageatwhich ithas to be decided inorder toenable thetrial toproceed further in accordance with the law and rules of practice relating to criminalprocedure;andwithin theambitofsuch expression it isnotincludedaquestion of law which was prematurely raised at a stage of the trial at which itdoes not have tobe decided for the purposes of the trialatthatparticularstage; because,in our opinion, section 148 does not provide a procedural machinery by means of which a party to a criminal case can seek a ruling on a point of law; from the Supreme Court,in anticipationof thestageof thetrialatwhich thestateof the law in relation tosuch point may orwillbecome actually material and of immediate importance for the further progress of the case; what is envisaged under the said subsection

(1)is a situation where a question of law is, so to speak, obtruding itself upon the trial Courtand demandingan answer straight­ away». Before concluding my judgment I must remark that these Applications present only an academic interest from the time accused 1pleaded notguilty totheinformation. At histrial hewill 35 certainly attack his voluntary statement as being involuntary and his evidence, if he consents to be called as a witness against the ptherJwp accused, willbe either hostile orif itisagainst themwill 'JaacLno,value. 477 Malachtos J. In re Attorney-General

(1988)Forthe reasons stated above, both Applications are dismissed. The Order of the 22nd June, 1988, staying the proceedings before the Assize Court of Nicosia, ishereby cancelled. Applications dismissed. 478