clr/1988/1988_2_119.pdf

(1966)2C.L.R 12; Policev.Nicola,7C.L.R.14; Rex. v.Solomonides and 11Others, 14C.L.R.127; 119 Loubaides v. Police

(1988)Varellasv The Police, I 9 C . L R

1. Rodosthenous and Another ν ThePolice, 1961 C.L R.
2. Sawa v. The Police

(1977)2 C L R. 292; Papakleovoulou v. ThePolice

(1978)2 C L R

1. R.-tlimas (19SH)1C I R 57 5 AppcaN against remand order. Appeals by Georghios 1 oukaides and Others against the order of the District Court of Limassol (Pampaliis, Ag. D.J ) dated 4th Ji'K', ΐ ^ 8 8 whereby accused were remanded in custody till the .--y.ri September, 1988 for trial by the next Limassol Assizes. 10 H. Savenades, for the appellant in Criminal Appeal 5 0 1 7 . L Ft-tathiou. for appellant in Criminal Appeals Nos. 5 0 1 8 , .
2. F. F- ri»)'/. for appellant in Criminal Appeal N o
3. M; 'wprianou. Senior Counsel of the Republic, for the respondents 15 A. L O I Z O U F gave iho following judgment of the Court. In appeals of '.his n.itu:e against the judgment of the trial Judge by which he infused to release on bail the appellants until the date of their trial tn; 'he ^ssi7C Court, the main duty of this Court is t o 2 0 determine wrwthei t'-'ie trial Judge exercised his discretionary power properly g;nded by the relevant principles of Law and taking into consideration the facts he ought to have taken, or not taking into consideration those that he ought to have excluded. Such appeals can neither be ο second attempt for release on bail, 25 nor succeed by the substitution of the approach of the trial Judge b y the view w h i c h this Court could have formed for the same circumstances. With this in m i n d we have listened to *he learned counsel of the appellants on all points which they argued before us and we have come to the conclusion that these appeals should be dismissed. 30 The learned trial Judge exercised his discretionary p o w e r correctly and he was guided by our Case Law and the principles enunciated therein. He also approached the facts in the proper manner and as he himself observes and says at the end of his 3 5 judgment, he had studied the application of the defence, bearing 120 2 C.L.R. Loukatdes v. Police A. Loizou P. inmindtheseriousnessoftheoffences forwhichtheyarecharged, the sentence provided by lawin case of conviction, the natureof the evidence adduced and was placed before him as Exhibit«C» for the purpose of committing the appellants for trial without 5 holding a preliminary inquiry, and came tothe conclusion that he could not exclude the likelihood of other offences being committed, or their not attending at their trial and added that on the basis of all these itwas in the interests of justice to refuse the application of theappellantsfor release on bail. 10 Itisclearfrom the reference tothevariousauthoritieswhich he made that our Case Law, which we fully adopt, has propounded certain principles We would like to refer first to the case of The Attorney-General of the Republic v. Yousouf Mehmet

(1966)2 C.L.R. 12 where the power of aJudge to grant bailas prescribed 15 by s.157

(1)of the Criminal Procedure Law Cap.155 was held to beadiscretionary one.Thisprinciplewasexpressed inthreeother cases, namely Police v. Stavros Nicola, 7 C.L.R. 14; Rex v. Solomonides andeleven others, 14C.L.R. 127;Varellasv. Police, 19C.L.R. 46. 20 The next case isthat of Lefkios Rodosthemous and Another v. ThePolice, 1961 C.L.R. 50 atpp.51,52 where itwas established that the primary ground in considering bail iswhether or not the accused islikelytoattendandstandtrial.That,however, notbeing theonlymatterthathastobe considered; andthatamongst others 25 are the seriousness of the offence, the likelihood of another offence being committed or the same offence being repeated whileonbail,andthepossibilityofwitnessesbeingtamperedwith. Andthat thisCourtonappeal willnot interfere with the discretion of a trial Judge or lower Court except for grave reasons and in 30 exceptional cases. Reference mayalsobemadetothecasesofLoizosSawa v.The Police

(1977)2 C.L.R. 292atp.295;and Papakleovouhu v. The Police

(1978)2 C.L.R. 446 at p. 449 where the principles expressed in Rodosthenous Case (supra) were adopted and 35 followed. Needless to say that these are not the only cases in which the principles governing the question of release on bail or not have been established, but it may be said that in all of them the same principles are propounded. Learned counsel for the appellants 40 havereferred usto«CriminalProcedure inCyprus»byLoizouand 121 A. LoSzoa P. LoobokSaov. PoBco <158©> Pikis,andwewouldliketorefertoonepassagefromp.36which wefullyadopt.Itreads: «....Themainconsiderationisthelikelihoodoftheaccused attendinghistrial.Aforecast ofthislikelihoodmaybemade, interalia,onaconsideration ofthegravityoftheoffence and 5 the strength of the evidence as it may emerge before the Court,factorsthatnormallyshedlightonthepossibilityofthe accused failing to attend his trial. However, though the likelihood of the accused attending his trial is the main considerationtowhichtheCourtwillhaveregard,itisnotthe 10 onlyconsideration, andtheCourtmayproperlyhaveregard tosuchotherfactorsasthepossibilityofanotheroffencebeing committed in the meantime and the likelihood of the accused'stamperingwithwitnesses.Inmakinganassessment ofthestrengthoftheevidenceagainsttheaccused,theCourt 15 may have regard to the evidence given in the preliminary inquiry. The principles formulated in Rodosthenous and Another v. The Police(supra), along the lines of English decided cases, were adopted and applied by the Supreme Court in Attorney-General v. Mustafa Ibrahim and Others, 20 1964C.L.R. 195.In Tsoukav.ThePolice, 1962C.L.R.261, the Supreme Court upheld theJudge's refusal to admitthe accused to bail, in the face of evidence that there was a possibility of the accused committinganother offence inthe meantime andthatthelife oftheaccusedwould,ifreleased, 25 be in danger. This decision illustrates that ancillary considerationssuchasthosenotedabovemayhaveadecisive effect ontheoutcomeofanapplicationforbail.» The learned trial Judge referred also to the case of In Re YiannakisEllinas,

(1988)1C.L.R.57.Hedidsoinresponsetothe 30 argument of the defence that the likelihood of the accused not attendingtheirtrialandthepossibilityofwitnessesbeingtampered with, was merely a statement of the prosecution. This case however,hasnodirectrelevancetothecaseinhand,aswearenot examining here thesufficiency oftheevidence for committalbut 35 theforceoftheevidenceandthelikelihoodoftheappellantsbeing convicted. Moreover the foreseeability is not based on the sufficiency, buton theforce oftheevidence.Thatisweexamine 122 2 C.L.R. Loukaidea v.Police A. Loizou P. the nature of the offence, the likelihood of conviction and the possibility of the appellant receiving a serious sentence. On the totality of the circumstances we have come tothe conclusion that in the present case the teamed trial Judge had this in mind in 5 examining the question whether he would release the appellants on bailor not. The case against the appellants, that is the charge which is common for all, is that of conspiracy to commit the offence of forgery contrary to s.371 of the Criminal Code and punishable 10 with seven years' imprisonment which links all of them to such a degree that there does not exist a question of differentiation between themanditcannot besaidthatthereexistsany indication in thejudgment of the trialJudge that he wasaffected bythe fact that two of the appellants are charged with the offence of forgery 15 contrary to section 336 of the Code which carries a term of imprisonment forlifeandthatheoverlookedthefactthattheother twoare charged with a lesser offence. All kinds of offences with which the appellants are charged either jointly or separately are of a very serious nature, the 20 evidence appears strong, and the likelihood to receive heavy sentences, if convicted, exists. Consequently we could not conclude that the learned trialJudge went wrong. What we would like to add is,that incaseswhere a trial Judge oraCourthastoexamineiftheaccusedwouldbereleasedonbail 25 or not, such likelihood and foreseeability are inferred from the evidencewhichhasalreadybeen adduced attheconclusionofthe preliminary inquiry or where the procedure dispenses with the holdingofa preliminary inquiryfrom thematerialwhichthere has been placed before theJudge. There isno need to adduce other 30 evidence, if same does not exist. If there exists, however, such evidenceastoactsfrom whichinferencesmaybedrawn,itmaybe given asseparate evidence. Such evidence may, forexample, be in the nature of efforts on the part of the accused to obtain a passport ormakeotherarrangementsfortravelwhichmaytend to 35 showthatthereisalikelihoodofhisabscondingfromCyprus.Also evidence of threats or other behaviour indicative of certain intentions relevant to the conduct that the refusal of bail aims at preventing. Itisfor all the above reasons that thisCourt dismissesall these 40 appeals. Appeals dismissed. 123