clr/1988/1988_1_57.pdf

(1988)A Judge of this Court* dismissed appellant's application for an Order ofCertiorari,quashinghiscommittalfortrial.Thisisan appeal from the said judgment. The question inthisappeal isthe interpretation ofsection 3ofthe CriminalProcedure(TemporaryProvisions)Law42/74,asamended by Law 44/83. 5 In Re Economides and Another

(1983)1 C.L.R. 933, a case decided before the enactment of Law44/83, Triantafyllides P. held that the District Court has a discretion whether to hold or not a preliminary inquiry, whereas in Re Argyrides

(1987)1 C.L.R. 30 10 Stylianides, J. decided that the District Court has no discretion to hold or not a preliminary inquiry, but simply to commit or not the accused for trial. Held, dismissing the appeal: (A) Per Triantafyllides, P.

(1)In Re Economides, supra thediscretionwaslinkedtothesufficiency inlaw 15 ofevidencejustifying committalfortrial.Sincethen,section3ofLaw 42/74wasamended (Law44/83)withtheresultthatinitsparagraph (b)the word «substance»hasbeen replacedbytheword «copy»and sonowaDistrictCourtJudgedealingwiththematterofcommittalfor trialbyan AssizeCourthasbefore himthefulltextsofthestatements 2 0 to the police of the prosecution witnesses and, therefore, it is no longer necessary to envisage the possibility of resorting to the holding of a preliminary inquiry for the purpose of ascertaining the sufficiency oftheirevidence.

(2)Asprovided bysection2 ofLaw42/74,thetermsusedinsuch 2 5 Law have the same meaning as that given to them by the Criminal Procedure Law, Cap. 155 and, consequently, the notion of committalforthepurposesoftheapplication ofsection 3ofLaw42/ 74, hastobe heldtobethesame asthat insection94ofCap. 155.

(3)Section 3asamended doesnotgivediscretionwhethertohold 30 a preliminary inquiry or not, but whether the evidence disclosed in the statement of the witnesses issufficient to warrant committal or not. B)Per A. Loizou J., Kourris, J. concuning: Itmay be noted here that originally paragraph (b)of section 3 of the Law provided that 3 5 only the «substance» of the statement of each prosecution witness wastobe givenwhereasbythe onlyamendment effected tothislaw and by its amending Law 44/83, the word «substance» has been replaced by the word«copy». 'SeeReEllinas

(1988)1C.L.R. 17. 58 1 C.L.R. In re Elllnas

(2)In the light of the wording of the aforesaid section and the obvious intent of the legislator as emanating from within the four comersof thesaid statutoryprovision, theconclusionisthatoncethe prerequisites of paragraphs (

1. a)and (
2. b)of section 3 are satisfied a committingJudge hasnopower todirecttheholdingofa preliminary inquiry contrarytothedeclared conclusion containedinthe written consent of the Attorney-General of the Republic given under paragraph (
3. a)thereof. The materia! words are to be found in paragraph (
4. a)ofsection3where itsaysthat«itisnotnecessary,tohold a preliminary inquiry» and the words initsconcluding partthat«the Court has power to commit for trial without a preliminary inquiry». These expressions have to be read subject to the phrase in the opening paragraph of section 3 which say «notwithstanding the provisions ofsection92of theCriminalProcedureLaw».The specific mention of section 92 clearly conveys the notion that it was the procedure envisaged thereby to the extent that the provisions governing same were incompatible with the Law thatwas rendered inoperative when the prerequisites of paragraphs (
5. a)and (
6. b)of section 3 were satisfied. If the legislator wanted to subject the decision of theAttorney-General tothediscretion of thecommitting Judge itwould have said soasitwas doneinthecase ofsection 24

(2)oftheCourtsofJusticeLaw 1960 (LawNo. 14of 1960)asamended. 25 30

(3)The word «commit» in the section should be given in accordance with section 2* of the l.aw the meaning ithas insection 94 of Cap. 155.Itfollowsthatwhere thereisaconflict ofevidence the judge shall consider the evidence to be sufficient to commit the accused for trial if the evidence against him is such as, if uncontradicted,would raise aprobable presumption of his guilt. Q Per Demetriades, J.: Section 3 imposes a duty on the committing Judge to see that the statements of the witnesses intended to be called by theprosecution disclose sufficient grounds for committal. The word «commit» in section 3 has the same . meaning as in section 94 of Cap. 155. When the accused is a corporation, regard must be had tosection 95 of Cap. 155. 35 . D) Per Sawides, J.:

(1)The importance of the amendment effected by Law 44/83, has been stressed by Triantafyllides P.,inhis judgment in the present appeal and was considered by him as such that made himto adopt a different approach than thatexpressed by him inEconomides case (supra). 40

(2)Counsel for appellant made reference to section 1 of the Criminal Justice Act,Ί 969 and section 6 of the Magistrates Courts Quotedatp.68. 59 InreEUlnas

(1988)Act, 1980. It should be noted, however, that under both the said EnglishActs,there isan expressprovision incommittal proceedings both insub-section

(4)ofsection 1 oftheCriminalJusticeAct,1969, aswellasinsubsection

(4)of section 102ofthe Magistrates Courts Act.

(3)Aperusal of the provisions of section 24

(2)of the Courts of Justice Law, I960 (Law 14/1960), may be useful in construing the provisionsofsection3.Whereasundersection24

(2)ofLaw 14/1960 the power of the Attorney-General to consent to a·summary trialis subject to the control of the court, no restriction or limitation 10 whatsoever is imposed on the right of the Attorney-General to dispense with the holdingofapreliminary inquiryundersection 3of Law 42/74. Material alsofor the construction ofsection 3 isthetitle of Law 42/74 which gives the object of the Law as being that of facilitating and expediting the administration of justice in criminal 15 cases. Inthelightoftheaboveonecouldsafely reachtheconclusion that if the intention of the legislature was to subject the consent of the Attorney-General for dispensation with a preliminary inquiry to the scrutiny of the committingJudge, such intention should havebeen 2 0 clearly manifested bythe inclusionofaprovision tothateffect inthe relevant law. E)PerStylianides, J.:

(1)The legislationunderconsideration isnot inconsistent or contrary to any of the constitutional provisions, Articles 12 and 30 of the Constitution or Article 6 of the European 2 5 Convention on Human Rights. The said Articles do not require anything more than a fairtrial.

(2)The Court haspower tocommit for trialwithout a preliminary inquiryany accused personiftwoprerequisitesare satisfied: (a)Written consent of the Attorney-General to the effect that itis 30 not necessary to hold a preliminary inquiry; and (b)The service inadvanceon the accusedorhisadvocate ofcopy of the statement of each witness for the prosecution whom the prosecution intends tocall.

(3)The District Court hasno power to decide whether tohold a 3 5 preliminary inquiry or not. Its power is to commit without a preliminary inquiry. However, thecommittingJudge doesnot make automatically a committal order. His power should be exercised judicially. He has to satisfy himself that there are sufficient grounds for a person tostand trial (ReArgyrides,supra, adopted). 40 60 5 1 C.L.R. 5 InreEllinas Itmay be well remembered that the committing Judge isnot the trial Court and questions of admissibility ofevidence and veracityof witnesses are decided on the trial.The District Court shall consider the evidence disclosed in the copy of statements to be sufficient to commit the accused for trial, if such evidence is such as, if uncontradicted, would raise a probable presumption of his guilt, independently of whether there is a conflict of evidence in the statements. Appeal dismissed. Casesreferredto: 10 Re Economides and Others

(1983)1C.L.R. 933; " Re Argyrides

(1987)1C.L.R. 30; Demetriades v.Republic

(1977)3 C.L.R.213; Xenophontos v.Republic, 2R.S.C.C.89; Police v.Athienitis

(1983)2C.L.R. 194; 15 R. v.Carden [1879]5 Q.B.D. 1; Atkinson v. U.S.A. Government [1971]A.C. 197; R. v.Epping and HarlowJustices [1973] 1Q.B.D.433; Re Ktimatias

(1977)2C.L.R. 296; Constantinides v.Republic

(1978)2 C.L.R. 337; 20 Pastellopoulos v.Republic

(1985)2 C.L.R. 165. Appeal. Appeal by applicant against the judgment of a Judge of the Supreme Court of Cyprus (Pikis J.) dated the 5th January, 1988 (Appl. No 194/87)* whereby his applicatien for an order of 25 certiorari to quash a ruling in Criminal Case No. 22444/87 of the District Court of Limassol was dismissed. G. Cacoyiannis, for the appellant. CI. Antoniades, respondent. 30 Senior Counsel of the Republic, for the The following judgments were delivered: 'Reportedin thisPartatp. 17ante. 61 InreBHnas

(1988)TRIANTAFYLLIDESP.:Thisappeal hasbeen madeagainst the judgment of a Judge of this Court, Pikis J., by which there was dismissedtheapplication oftheappellant foran orderof certiorari \ to quash a ruling given on 21 November 1987, in criminal case No. 22444/87, inthe DistrictCourt of Limassol. 5 The appellant is the accused in the said case and by the complained of by him ruling a District Court Judge in Limassol appearstohave, ineffect, decided thathehadnodiscretion under section 3 of the CriminalProcedure (Temporary Provisions) Law, 1974(Law42/74)toholdapreliminaryinquiryinthatcase,ashad 10 been applied for by counsel for the appellant. Mylearned brother Judge, against whose judgment the appeal wasmade,hasheldthatunderthesaidsection3ofLaw42/74 there isno discretion tohold apreliminaryinquiryandthatthefunction of the court before which there has been made an application for 15 committal fortrialbyanAssizeCourt,withoutapreliminary inquiry, is to ascertain whether on the basis of the statements of prosecution witnesses, which have been furnished under paragraph (

1. b)of section 3, the committal for trial is warranted, in the sense that the statements raise a probable presumption of 20 theguiltof the accused. Section 3 of Law 42/74, as amended by section 2 of the Criminal Procedure (Temporary Provisions) (Amendment) Law, 1983(Law44/83), reads, in English translation, as follows: «3. Duringthe continuance inforce oftheCourtsofJustice 25 (Temporary Provisions) Law, 1974, and notwithstanding the provisions of section 92 of the Criminal Procedure Law, in cases of offences created by the Criminal Code or any other Law in force, with the exception of offences punishable with the death penalty, if30 (
2. a)the Attorney-General of the Republic gives his written consenttotheeffect thatitisnotnecessarytohold a preliminary inquiry; and (b)acopyofthestatementofeachprosecutionwitness, whom the prosecution intends to call, is served in 35 advance on the accused or his advocate, the Court has power to commit for trial,without a preliminary inquiry, any accused person.» 62 1C.L.R. InreEIHnaa Triantafyffides P. The trial Judge in giving the judgment against which the present appeal has been made has followed In re Arghyrides,

(1987)1 C.L.R. 30, which was decided by Stylianides J. on 14 February 1987,and hasnot followed InreEconomides,

(1983)1 5 C.L.R. 933,which wasdecided by me on 21June

1. Itistruethatinthe Economides case,supra, IheldthataDistrict Judge had a discretion to decide under section 3 of Law 42/74 whether or not a preliminary inquiry was to be held; and Ilinked this discretion to the matter of the sufficiency in law of evidence 10 justifying committal for trial; and I pointed out that inview of the course that had been adopted bythe District Court of Lamaca in that case there had, inactual fact, been held a preliminary inquiry not on the basis of oral evidence but «on the basis only of the written summaries of evidence» which had been produced as 15 envisaged byparagraph (b)of section 3 of Law 42/
2. Since then, however, section 3 of Law 42/74 has been amended, as aforesaid, by Law 44/83 with the result that in its paragraph (b)theword«substance»hasbeen replacedbytheword «copy»and so now a DistrictCourtJudge dealingwith the matter 20 of committal for trial by an Assize Court has before him the full texts of the statements to the police of the prosecution witnessesand, therefore, itisno longernecessary toenvisage the possibility of resorting to the holding of a preliminary inquiry for the purpose of ascertaining thesufficiency oftheir evidence. 25 Even though it isstill the position that section 3 of Law 42/74 excludes the holding of a preliminary inquiry as such, a District CourtJudge inexercising hispowers under the saidsection 3 has before him the full texts of the statements to the police of the prosecution witnesses and has the duty and the opportunity to 30 decide whether theevidence againsttheaccused,asdisclosed by the said statements, is such as, if uncontradicted, would raise a probable presumption of the guiltofthe accused. In interpreting section 3 of Law 42/74 there must be borne in mind that, asprovided bysection 2 of Law42/74, theterms used 35 insuch Lawhave thesame meaningas thatgiven tothem by the CriminalProcedureLaw,Cap.155,and,consequently, thenotion ofcommittalforthepurposesoftheapplication ofsection3ofLaw 42/74 hasto be held tobe the same as that in section 94 of Cap.
3. 63 Triantafyttldee P. InreEIBnaa

(1988)Foralltheforegoing reasonsIamoftheopinionthatsection 3 ofLaw42/74,asamendedbyLaw44/83,cannotbeconstruedas empowering a District Court Judge in a case of this nature to decidewhetherornotto'.loldapreliminaryinquiry,butempowers himtodecidewhethertheevidencedisclosedbythestatementsto 5 thepoliceoftheprosecution witnessesissufficient towarrantthe committal of the accused for trialby an AssizeCourt, without a preliminaryinquiry. Consequently, thisappealhastobedismissed. A.LOIZOU J.:Thesoleissuefordetermination inthisappeal, 10 from thejudgmentofaJudgeofthisCourt(PikisJ.),asitwasalso before him, is the interpretation and effect of Section 3 of the CriminalProcedure (TemporaryProvisions)Law,1974(LawNo. 42 of 1974). -hereinafter to be referred to asthe Law -andin particular,whetherthereispowervestedintheCourttoorderthe 15 holdingof apreliminaryinquirynotwithstandingthefulfilment of the conditions set out in paragraphs (a) and (b) of Section 3 thereof. There hasbeen a divergence of approach bymembers ofthis Court, namely Triantafyllides P., and Stylianides J., trying 20 applications inthe first instance on the issuebefore us,andtheir respectiveviewsaretobefoundinthecasesofInReEconomides and Others

(1983)1 C.L.R. 933 and InRe Argyrides

(1987)1 C.L.R.30.Thissituationrendereditdesirabletohavethisappeal heard by the Full Bench of this Court, so that in view of the 25 frequent occurrenceofsuchissuesbeforecommittingJudgesthe matter would be settled by establishing a judicial precedent binding on allinthesensethat thedoctrine ofjudicialprecedent hasbeenunderstood inourjudicialsystemasbeingthenecessary basisforprovidinga degreeof certaintyastothelaw,inorderto 30 show a consistency in judicial pronouncements and at that an equality of treatment before the law and the means for the development of legal rules ina disciplined and regular manner. (SeeDemetriadesv.TheRepublic

(1977)3C.L.R. 213). Theappellantwaschargedbefore aJudgeoftheDistrictCourt 35 of Limassol, inCriminal CaseNo.22444/87,withthirty offences relating to stealing and/or stealing property received on the accountofanotherintheperiodbetweenFebruary1981andJuly 1983,allbeingindictableoffences. Itmaybenotedherethatthere 64 1 C.L.R. hi re Effinas A. Loizoa J. were also filed in the same District Court three more cases under Nos. 22445/87, 22446/87 and 23802/87 for similar offences chargingthe appellant with one-hundred and fifty countsinall. Learned counsel fortheappellant applied totheleamed Judge 5 thatapreliminary inquirybeheldundertheprovisionsofSections 92 and 93 of the Criminal Procedure Law, Cap. 155, as the learnedJudge had powertodosoundertheprovisionsofSection 3 of the Law and that the approach of Triantafyllides P., In Re Economides (supra) should be followed in preference to that of 10 StylianidesJ., inReArgyrides (supra).On the otherhand learned SeniorCounseloftheRepublicsubmitted thatthesaidapplication shouldberefused andthatheshouldfollowthelattercaseandrule that ithad no power to order the holding of apreliminary inquiry andcommittheappellant fortrialoncethelearnedtrialJudge was 15 satisfied thatthetwoprerequisitessetoutinparagraphs (a)and (b) ofSection 3of theLawhad been complied with,namelythat the Attorney-General oftheRepublichadgivenhiswrittenconsent to the effect that it was not necessary to hold a preliminary inquiry and that copies of the statements of each prosecution witness, 20 whom the prosecution intended to call, had been served in advance on the appellant orhisadvocate. The learned trialJudge ruled that it had no discretion to direct theholdingofapreliminaryinquiryhavingtakentheviewthat the discretionvestedintheCourtbyvirtueofSection3oftheLawwas 25 confined to an evaluation of the effect of the statements of witnesses with a view to deciding whether they contained sufficient materialtocommittheaccused fortrialbefore theAssize Court. Thereupon an application was filed in thisCourt seeking leave 30 toapplyforanorderofcertiorariinordertobringupandquashthe said ruling of the committing Judge. Leave was granted and ultimately after hearing counsel on the 18th and 23rd December 1987, Pikis J., delivered the judgment under appeal on the 5th January 1988. 35 In Re Economides (supra) Triantafyllides, P., at pp. 940-941, said the following: «Ontheotherhand, Idonotregardthefunction ofaDistrict CourtunderLaw42/74asbeingamerelyautomatic function, because thesaid Lawbyitssection 3 clearlyprovidesthatthe 65 A.LoizouJ. Inre Effinas

(1988)Court 'has power to commit for trial' and thisprovision does vest, in my .opinion, in the District Court concerned discretionary powertodecidewhetherornotaparticularcase isone inwhich itisproper to commit the accused for trialby an Assize Court without holding a preliminary inquiry; and 5 such power istobe exercised, of course,judiciallyinthelight of all relevant considerations, one of which could be the sufficiency, of the evidence, in the sense that if either the District Court is prima facie of the view that there does not existsufficient inlawevidencejustifying thecommittalfortrial 10 of the accused, or if counsel appearing for the accused puts forward such an argument and the District Court is of the opinion that this argument is prima facie well-founded, the District Court may decide not to commit the accused for trial without a preliminary inquiry, but instead to hold a 15 preliminary inquiry, so as to avoid putting a person on trial before an Assize Court without sufficient evidence justifying such a course.» InReArgyrides (supra)however,StylianidesJ., approached the issueat pp.40 -41 asfollows: 20 «The controlling words of the section are: The Court has power to commit for trial without a preliminary inquiry any accused person. These words do not empower the Court to exercise discretion whether to hold or not a preliminary inquiry; the power istocommitwithout apreliminary inquiry 25 or not to commit. The discretion whether a preliminary inquiry isnecessary or not,whether theprovisions of s.92of Cap. 155 should be followed or the provisions of this law should be applied, were entrusted by the legislator to the Attorney-General of the Republicwhose written consent that 30 the holding of a preliminary inquiry is not necessary, was made a prerequisite for theexercise ofthepower giventothe Court by this section. The Attorney-General under the Constitution exercises very wide powers of quasi-judicial nature -(Article113oftheConstitution -Xenophontos v.The 35 Republic, 2 R.S.C.C. S9;Police v.Athienitis,

(1983)2 C.L.R. 194). The committingJudge doesnotmakeautomatically orasa matterofcourseacommittalorder.Theobjectofthe necessity of a case goingthrough committalproceedingsbefore trialby 40 66 1 C.L.R. 5 10 In re EUlnas A.LotzouJ. the Assize Court isa safeguard for a citizen to ensure that he cannot be made tostand histrialwithoutsufficient grounds.It serves as a safeguard of the liberty of the subject and of the ordeal ofstandingatrialbefore theAssiseCourt unnecessarily - R.v. Carden, [1879] 5 Q.B.D. 1: Atkinson v. U.S.A. Government, [1971] A.C. 197: R. v. Epping & Harlow J Justices [1973] 1Q.B.D. 433). This function of the committal proceedings was not taken away by Law No. 42/74. It facilitated and shortened committal proceedings but it did not take away its basic function». The learned trial Judge whose judgment is the one undet appeal had thistosay (see

(1988)1C.L.R. 17atpp.23~24): 15 20 25 30 35 «Section 3 does not in terms repeal or amend s.92 of the Criminal Procedure Law providing for the holding of a preliminary inquiry. It merely obviates the need for such a course whenever the prerequisites laid down thereunder are satisfied, namely (

1. a)certification by the Attorney-General of the non-necessity of holding a preliminary inquiry and (
2. b)supplying the accused or his counsel with the statements of prosecution witnesses. The inevitable inference is that by s. 3(
3. a)the legislature intended to constitute the AttorneyGeneral, the arbiter of the necessity of holding a preliminary inquiry, and by s. 3(
4. b)to establish a substitute for the depositions as a means of apprising the accused of the case he will face at the trial. For the reasons earlier indicated, no objection can be raised to the conferment of power upon the Attorney-General todeterminethenecessityforapreliminary inquiry. Similarly, it was in the power of the legislature to prescribe an alternative process of informing the accused of the case he willbe required to meet athistrial.The law does not interms make the decision of the Attorney-General as to the non-desirability ofholdingapreliminaryinquirysubject to judicial control. What we must determine iswhether thispower should be implied by the concluding words of s. 3 bestowing power upon the Court to commit the accused to trial without a preliminary inquiry. But for the endingpart of s.3,the Court would have had no power to commit to trial without a 67 A.LofeouJ. Inre EUlnas

(1988)preliminary inquiry. Therefore we can legitimately infer that the discretion vested inthe Court thereby isdirectly related to the committal of the accused to trial without a preliminary inquiry.ThepowervestedintheCourtcannotbeextricatedor be readseparately from theintroductorypartofs.3defining the 5 circumstances under which a preliminary inquiry may be dispensed with.Read inthislight,themeaningand effect ofs. 3 is to 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. Thepower 10 giventotheCourtbytheconcludingpartofs.3 isintended to savethepowertocommitnotwithstandingthenon-holdingof a preliminaryinquiry.Whilethediscretionimportedtherebyis referable tothejustification ofcommittal,thelawdoesnotrepeal s. 94 of the Criminal Procedure Law, Cap. 155, and does 15 not abrogate the standard governing committal, namely probable presumption of the guiltof the accused. The Court mustdecide whetherthematerialmadeavailableunders.3(

1. b)replacing the depositions,thatis,thestatementsofwitnesses, stripped ofany contradictions, raisesaprobable presumption 20 of theguiltof the accused.» Sections2 and 3 of the Lawread as follows: «2. In this Law the terms used have the same meaning as thatgiven tothem bythe Criminal Procedure Law. 3. During the continuance inforce of the Courts of Justice 25 (Temporary Provisions) Law, 1974, and notwithstanding the provisions of section 92 of the Criminal Procedure Law, in cases of offences created bythe Criminal Code or any other Law in force, with the exception of offences punishable with the death penalty, if30 (
2. a)the Attorney-General of the Republic gives his written consent to the effect that it is not necessary to hold a preliminary inquiry: and (
3. b)copy of the statement of each prosecution witness, whom theprosecution intendstocall,isservedinadvance on 35 theaccused or his advocate, the Court haspower to commit for trialwithouta preliminary inquiry any accused person).» 68 1 C.L.R. I n re Elllnae A. Lolzou J . Itmaybenoted herethatoriginallyparagraph (b)ofsection3of the Law provided that only the «substance» of the statement of each prosecution witness was to be given, whereas by the only amendment effected to this lawand by itsamending Law 44/83, 5 theword «substance»has been replaced bytheword «copy». Having given my best consideration to the wording of the aforesaid section and the obvious intent of the legislator as emanating from within the four comers of the said statutory provision,Ihave cometotheconclusion thatoncethe prerequisites 10 of paragraphs (
4. a)and (
5. b)of section 3 are satisfied, a committing Judge hasno power to direct the holding ofa preliminary inquiry contrary to the declared conclusion contained in the written consent of the Attorney-General of the Republic given under paragraph (
6. a)thereof. I find myself in full agreement with the 15 approach of both Stylianides and Pikis, JJ., as set out in the passages from their judgments hereinabove cited. Indeed the materialwordsaretobefound inparagraph (a)ofsection3 where itsays that «itisnot necessary to hold a preliminary inquiry» and the words in its concluding part that «the Court has power to 20 commit for trialwithoutapreliminaryinquiry».These expressions have toberead subjecttothephrase inthe opening paragraph of section 3,whichsay«notwithstandingtheprovisionsofsection 92 of the Criminal Procedure Law».The specific mention of section 92 clearlyconveysthenotion thatitwastheprocedure envisaged 25 thereby to the extent that the provisions governing same were incompatible with the Law that was rendered inoperative when the prerequisites of paragraphs (
7. a)and (
8. b)of section 3 were satisfied. Ifthe legislator wanted to subject the decision of the Attomey30 General to the discretion of the committing Judge itwould have said soas itwas done inthe case of section 24

(2)of the Courtsof Justice Law, 1960, (Law No. 14 of 1960), as amended which provides that: 35 «Notwithstanding anything in this section contained a President of a District Court, a Senior District Judge, or a DistrictJudge shall,withthe consent ofthe Attorney-General oftheRepublic,havejurisdictiontotrysummarilyany offence punishable with imprisonment for a term not exceeding seven years. Ifsatisfied that itisexpedient so to do, inall the circumstances of the case including,considerartion of the 69 A.LoizonJ. Inre Elllnas

(1988)adequacy ofthepunishment, orcompensationsuch President of a District Court, Senior District Judge or District Judge is empowered under thissection toimpose oraward » Under this section though consent of the Attorney-General is given itisexpresslystatedthattheJudge hastobesatisfied himself 5 thatitisexpedient totrysummarilyanoffender accused ofsuch an indictable offence taking into consideration all the circumstances of the case, including the adequacy of the punishment and compensation thathe may himself award. That being so Iturn now tothe meaning and effect of the word 10 «commit» in the last part of the section. It has to be given in accordance with the provisions of section 2 of the Law which provides that terms used have the same meaning as that given to them by Cap. 155, the meaning that the word «commit» has in section 94of the Criminal Procedure Law, Cap. 155,namely that 15 where there isa conflict of evidence, the Judge shall consider the evidence to be sufficient to commit the accused for trial if the evidence against him is such as if uncontradicted would raise a probable presumption of his guilt. This is the test by which the materialplaced before thecommittingJudge hastoapplyinorder 20 to decide if he will commit the accused for trial before(the Assize Court, or not.Needless to say that in the case of an accused corporation, the provisions of section 95 of Cap. 155 are applicable. For allthe above reasons the appeal hastobe dismissed. 25 DEMETRIADES J.: Mybrother Judges, who spoke before me, have clearly set out the facts of this appeal and I, therefore, propose not to deal with them. Although Ifully agree with the outcome of the appeal, Iwould liketostate in short myreasons for reaching mydecision. 30 The issue in this appeal is whether a committing Judge has a discretion to order that a preliminary inquiry be carried out notwithstanding that the prerequisites provided in paragraphs (

1. a)and (
2. b)of section 3 of the Criminal Procedure (Temporary Provisions) Law, 1974 (Law 42/74), as amended by section 2 of 35 the Criminal Procedure (Temporary Provisions) (Amendment) Law, 1983(Law44/83), are fulfilled. In myview- 70 1 C.L.R. Inre EUlnas Demetrlades J. (a)the provisionsof section 3 impose a duty onthe committing Judge toseethatthewrittenstatementsofthewitnesseswhich the prosecution intends to call at the trial before the Assizes disclose sufficient grounds for committing an accused fortrialbyanAssize 5 Court, (b)the meaning and effect of the word «commit» isnone other than that appearing insection 94 of the Criminal Procedure Law, Cap. 155,and (c)regard mustbehad, when anaccusedisacorporation, tothe 10 provisions of section 95 of Cap. 155 as these are applicable in proceedings ofthis nature. Having reached my above findings, I have also come to the conclusion thatthe appeal mustbe dismissed. SAWIDES J.: In this appeal the decision of a Judge of this 15 Court dismissing the application of the appellant for an order of certiorari toquash a rulinggiven on the21stNovember, 1987,in Criminal Case No. 22444/87 inthe DistrictCourt of Limassol, is being challenged. The issuebefore the learned trialJudge waswhetherthe ruling 20 of a Judge of the District Court of Limassol in committal proceedings whereby he decided thathehad nodiscretion under section3 of the CriminalProcedure (Temporary Provisions) Law, 1974 (Law 42/74), as amended by the Criminal Procedure (Temporary Provisions) (Amendment) Law 1983 (Law44/83), to 25 hold a preliminary inquiry once the prerequisites of such section had been satisfied. The learned trial Judge in dismissing appellant's application, concluded as follows: 30 35 «I conclude that the Judge inquiring into the case has no discretion to order the holding of a preliminary inquiry when therequisitesofs.3(a)and (b)ofLaw42/74aresatisfied. The function of the Court isconfined to ascertaining whether the material disclosed inthestatementswarrantsthecommittalof the accused totrial.» The Learned trialJudge in reaching hisconclusion considered the divergent opinions expressed by Judges of thisCourt in two 71 S a w l d e s J. In reEUInas

(1988)different cases.InReEconomides and others

(1983)1 C.L.R.933, section 3 of Law 42/74 was construed by Triantafyllides P. as giving a discretion to the committing Judge to decide whether or not apreliminary inquirywastobe held.InreArghyrides

(1987)1 C.L.R.30, Stylianides,J. held thatthe lawdoes notempower the 5 Court to hold a preliminary inquiry and that when the provisions of the law are satisfied, he has to commit the accused for trial before the Assizes. The learned trial Judge adopted the view expressed in Arghyrides case and explained the reason why he did not follow. 10 theviewexpressed byhimandA.Loizou,J.intheiranalysisofthe provisions of section 3 in their book «Criminal Procedure in Cyprus», that residual discretion vests in the Court to hold a preliminary inquiry, notwithstanding the consent of the AttorneyGeneral, to dispense with it. 15 Under section 3 of the Criminal Procedure (Temporary Provisions) Law, 1974 before itwasamended by Law44/83, the Courtisempowered tocommitanaccused personfortrialwithout a preliminary inquiry, provided that:«(a)The Attorney-General of the Republic giveshiswritten 20 consent to the effect that the holding of such a preliminary inquiry isnot necessary; and (b) the substance of the statement of each prosecution witness whom the prosecution intends to call, is served in advance on theaccused orhisadvocate.» 25 Section 3 of Law42/74 wasamended bysection 2ofLaw 44/83 tothe extentthatthe word«substance»insection3(b)was deleted and substituted bytheword «copy»,withthe resultthatone of the prerequisites now for dispensing with a preliminary inquiry is service in advance on the accused or hisadvocate of copy of the 30 statement ofeachprosecution witnessintended tobecalledbythe prosecution. The importance of theabove amendment hasbeen stressed by Triantafyllides, P., in hisjudgment in the present appeal and was considered by him as such that made him adopt a different 35 approachthanthatexpressedbyhiminEconomides case(supra). Learned counsel for the appellant submitted that in construing the provisions of section 3 the Court may derive assistance from 72 1C.LR. InreEUlnas SawldeeJ. similar provisions in England and the English Case Law on the matter. In particular, counsel made reference to section 1of the CriminalJusticeAct, 1969andsection 6oftheMagistrates Courts Act, 1980. Itshould be noted, however, that under both the said 5 English Acts there isexpress provision in committal proceedings both in sub-section

(4)of section 1 of the Criminal Justice Act, 1969,aswellasinsub-section

(4)ofsection 102oftheMagistrates CourtsAct,as follows:10 «Notwithstanding that a written statement made by any person maybeadmissibleincommittal proceedingsbyvirtue of this section, the court before which the proceedings are held may,ofitsown motion orontheapplication ofany party to the proceedings, require that person to attend before the courtand give evidence.» 15 A perusal of the provisions of section 24

(2)of the Courts of Justice Law, 1960(Law 14/1960) may be useful inconstruing the provisions of section 3. Section 24

(2)relates to the power of the Attorney-General togivehisconsent forsummarytrialof offences punishable with imprisonment for a term not exceeding seven 20 years. Under the provision of section 24

(2)the power of the Attorney-General can be exercised ifthe Court is«satisfied thatit isexpedient sotodo inallthe circumstances ofthecase including consideration of the adequacy of the punishment or compensation.» 25 Whereas under section 24

(2)of Law 14/1960 the power of the Attorney-General to consent tp a summary trial issubject to the control of the Court, no restriction or limitation whatsoever is imposed on therightoftheAttorney-General todispensewiththe holding of a preliminary inquiry under section 3 of Law 42/74. 30 Materialalsofortheconstruction ofsection3isthetitleofLaw42/ 74whichgivestheobjectofthelawasbeingthatoffacilitating and expediting the administration ofJustice incriminalcases. Bearing in mind the relevant provisions in the English acts as wellastheprovision insection 24

(2)oftheCourtsofJustice Law, 35 1960,one couldsafely reach theconclusionthatiftheintentionof the legislaturewastosubject theconsent ofthe Attorney-General for dispensation with a preliminary inquiry to the scrutiny of the committing Judge, such intention should have been clearly manifested by the inclusion of a provision to that effect in the 40, relevant law. 73 SawidesJ. InreEUinas

(1988)Bearing in mind all the above I am in agreement with the construction of section 3 of Law42/74, (asamended byLaw 44/ 83)givenbyTriantafyllides, P.andA.Loizou,J.intheirjudgments just delivered to the effect that section 3 of Law 42/74 (as amended byLaw44/83) cannotbe construed asempowering the 5 Judge dealing with a case of thisnature to decide whether or not to hold apreliminary inquiry andthatthe onlythingthat he hasto consider iswhether the evidence disclosed bytheir statements to the Police of prosecution witnesses is sufficient to warrant the committalofan accusedpersonfortrialbyanAssizeCourtwithout 10 a preliminary inquiry. Thisappeal hastherefore tobe dismissed. STYLIANIDES J.: This appeal raises a single and important question: Has a Judge of the District Court discretion under section 3 ofthe Criminal Procedure (Temporary Provisions) Law, 15 1974 (Law No. 42/74) to hold a preliminary inquiry when the prerequisites set out inparagraphs (a)and (b)are satisfied? Acharge wasbrought againsttheappellant intheDistrictCourt of Limassol for a number of indictable offences. Copy of the statements of each prosecution witness intended to be called by 20 the prosecution were served in advance on the advocate of the appellant and the written consent of the Attorney-General to the effect that is not necessary to hold a preliminary inquiry was available tobe produced tothe Court. Learned counsel for the appellant submitted to the District 25 Judge that in accordance with section 3 and particularly the last two lines thereof the Court has power to exercise a discretion whether toproceed with orwithouta preliminary inquiry. The DistrictJudge in a considered Ruling decided thathe had no discretion tohold a preliminary inquiry. Shortly afterwards certiorari proceedings were taken before a Judge of this Court to quash the Ruling of the District Judge of Limassol. The Judge who dealt with the application for certiorari dismissed it, holding that the meaning and effect of section 3 of 35 Law42/74istoempowertheCourttocommittheaccusedtotrial despite the absence of a preliminary inquiry, provided the conditionssetout insections3(a)and (b)aresatisfied and that no 74 30 1 C.L.R. InreEMnas StpUanldesJ. discretionary power is bestowed upon the committing Court to hold apreliminary inquiry. The Criminal Procedure (Temporary Provisions) Law, 1974 (LawNo.42/74)waspromulgated on27/9/1974.Itwasamended 5 bythe Criminal Procedure (Temporary Provisions) (Amendment) Law, 1983(LawNo.44/83).Itsobject, asitemergesfrom thelong title and the contents of the Law, isto facilitate and expedite the administration of justice in criminal cases during the emergency created inconsequence of theTurkish invasion.ThisLawmay be 10 retained as a permanent feature of our legislation and then is expected that itwillbe formulated ina more elaborate manner. Thispiece of legislation isnot inconsistent or contrarytoanyof the constitutional provisions, Articles 12 and 30 of the Constitution, orArticle6of the European Convention on Human 15 Rights.The said Articlesdo not require anything more than a fair trial. Itisnot imperative, on the strength of the above Articles, to hold a preliminary inquiry inrelation tocriminal cases, otherwise than as provided from time to time by legislation. Absence of a preliminary inquiry does notresult inviolation ofthe rights under 20 the above Articles and itdoes not result in depriving an accused person of a fair trial. {In Re Ktimatias

(1977)2 C.L.R. 296; Constanhnides v. The Republic

(1978)2 C.L.R. 337; Pastellopoulos v. The Republic

(1985)2 C.L.R. 165.) Thepreliminary inquiry originated in England, itsobject wasto 25 consider whether there wassuch evidence that accused might be sent to take his trial before another tribunal. Committal proceedingswereheldinEnglandbefore thepassingofsection 25 of the Indictable Offences Act, 1848whereby preliminary inquiry received statutory authority. 30 The object of the necessity of a case going through committal proceedings before trial by the Assize Court isa safeguard for a citizen to ensure that he cannot be made tostand histrial without sufficient grounds. It served as a safeguard of the liberty of the subject'and oftheordeal ofstandingatrialbeforetheAssizeCourt 35 unnecessarily (R. v.Carden [1879]5Q.B.D. 1;Atkinson v. U.S.A. Government, [1971] A.C. 197; /?. v. Epping &Harlow Justices, [1973]1Q.B.D.433). ' 75 Stytianidee J. In reElllnes

(1988)Section3 of Law 42/74, as amendedby section2of Law 44/83 reads as follows:«3. Διαρκούσης τ η ς ισχύος τ ο υ περί Δικαστηρίων (Προσωρινοί Διατάξεις) Νόμου τ ο υ 1974 καιπ α ρ άτ α ς διατάξεις τ ο υ ά ρ θ ρ ο υ 92τ ο υπερί Ποινικής Δικονομίας 5 Νόμου εις περιπτώσεις αδικημάτωνπροβλεπομένων υπό τ ο υ Ποινικού Κωδικός ή οιουδήποτε ετέρου εν ισχύι Νόμου, εξαιρουμένων αδικημάτων τιμωρουμέ­ νων διατηςποινής τ ο υ θανάτου,εάν(α) ο Γενικός Εισαγγελεύς τηςΔημοκρατίας παράσχη ί ο γραπτήν συγκατάθεσιν περί της μη αναγκαιότητος διεξαγωγής τ ο ι α ύ τ η ς προανακρίσεως' και

(8)α ν τ ί γ ρ α φ ο ν τ η ς καταθέσεως εκάστου μάρτυρος κατηγορίας τ ο ν οποίον προτίθεται να καλέση η κ α τ η γ ο ρ ο ύ σ α Αρχή, επιδοθή προηγουμένως εις τον 15 κατηγορούμενον ή τ ο ν δικηγόρον α υ τ ο ύ , το Δικαστήριον κέκτηται εξουσίαν ν α π α ρ α π έ μ ψ ηεις δίκην άνευ προανακρίσεως οιονδήποτε κατηγορούμε­ νον.» («3.Duringthecontinuanceinforce of theCourtsofJustice 20 (Temporary Provisions) Law, 1974, and notwithstanding the provisions of section 92 of the Criminal Procedure Law, in cases of offences created by the Criminal Code or any other Law in force, with the exception of offences punishable with the death penalty, if25 (

1. a)the Attorney-General of the Republic gives his written consent to the effect that it is not necessary to hold a preliminary inquiry; and (
2. b)copy of the statement of each prosecution witness, whom theprosecution intendstocall,isservedinadvance on 30 the accused or his advocate, the Courthas power tocommitfor trialwithouta preliminary inquiry any accused person.») Thissection was judicially considered before its amendmentIn Re Economides and Others

(1983)1 C.L.R. 933 and after its 35 amendment InRe Arghyrides

(1987)1 C.L.R.

1. 76 1 C.L.R. In re EUlnaa Stytianidee J. The Court has power to commit for trialwithout a preliminary inquiryany accused person, iftwoprerequisites are satisfied: (a) Written consent of the Attorney-General to the effect that itisnot necessary tohold a preliminary inquiry; and 5 (b)The service in advance on the accused or his advocate of copy of the statement of each witness for the prosecution whom the prosecution intendstocall. I continue to hold the opinion which I expressed In Re Arghyrides (supra) that the District Court has no power to decide 10 whethertoholdapreliminaryinquiryornot.Itspoweristocommit withouta preliminary inquiry. InRe Argyrides I said, interalia, the following atpp.39-40:- 15 25 30 35 «Though the notion of committing without preliminary inquirywasembodied asearlyas 1967intheCriminalJustice Actin England, after comparison of theprovisions of the two Laws,IamoftheviewthattheCypriotlegislatordidnot follow inany respectthe English Law.TheEnglish Lawisnot of any guidance in the interpretation or application of our Law, neither isthe Magistrates'Act,
2. The controlling words of the section are: 'The Court has power to commit for trial without a preliminary inquiry any accused person.' These words do not empower the Court to exercise discretion whether to hold or not a preliminary inquiry; the power istocommit without apreliminary inquiry or not to commit. The discretion whether a preliminary inquiry isnecessary or not,whether the provisions of s.92of Cap. 155 should be followed or the provisions of this Law should be applied, were entrusted by the legislator to the Attorney-General ofthe Republicwhosewritten consent that the holding of a preliminary inquiry is not necessary, was made a prerequisite fortheexerciseofthepowergiventothe Court by. this section. The Attorney-General under the Constitution exercises very wide powers of quasi-judicial nature -(Article 113oftheConstitution -Xenophontos v. The Republic, 2 R.S.C.C. 89;Police v.Athienitis,

(1983)2 C.L.R. 194). 77 StyUanldes J * In re Elllnas

(1988)The committingJudge doesnotmakeautomatically orasa matter of course a committal order This function of the committal proceedings was not taken away by Law No. 42/74. It facilitated and shortened committal proceedings but it did not take away its basic 5 function. under our Law he is vested with power to commit without preliminary inquiry. Such power should be • exercised judicially. He has to satisfy himself that there are sufficient grounds for a person tostandhistrial.The object of 10 the provision to deliver copies of the statements of the witnesses whom the prosecution intends to call at the trialis twofold: (a) to enable the committing Judge to exercise his discretion; and (b)toinform the accused ofthe casethathe is -.c due to face.» The power conferred on the Court is a discretionary power which has to be exercised judicially on the material contained in the copies of the statements of the witnesses. Itmaybewellremembered thatthecommittingJudgeisnotthe trial Courtand questions ofadmissibility of evidence and veracity 20 of witnessesare decided on thetrial. The District Court shall consider the evidence disclosed in the copy ofstatements tobe sufficient tocommittheaccused fortrial, if such evidence is such as, if uncontradicted, would raise a probablepresumption ofhisguilt,independentlyofwhetherthere 25 isa conflict of evidence inthe statements. For the foregoing reasons, Iam of the opinion that no error of Law on the face ofthe record of the DistrictCourtof Limassol is manifest and consequently the application for certiorari was rightlydismissed. Iwould dismissthis appeal. KOURRIS, J.: I am in agreement with the judgment of A. Loizou, J. and for the same reasonsI dismissthe appeal. Appeal dismissed. 78