clr/1988/1988_2_209.pdf

(1987)2 CLR 96 5 Obtaining money by falsepretences — The Cnmmal Code, Cap 154, sections297 and298 — Reproduction ofsection32

(1)oftheEnglish Larceny Act, 1916— «Obtains» — //means to obtain the property, not merelypossession ofit— Section 298 createsonlyone offence, whichcanbe committed intwo differentways 10 Cnmmal Procedure — TheCnmmal Procedure Law, Cdp i$CJ, sectu 39 (theproviso thereto)— Object andambitof the proviso ιr Criminal Procedure ~ TheCriminal Procedure Law Cap 155 section 84(5}—Adding a count — Prerequisites of the application of the section — It does not apply if the offence is disclosed but the particulars referred to one or more ways that can be committed whilsttheevidence showed itscommission inanother way Cnmmal procedure — TheCnmmal Procedure Law, Cap 155 section 83 — Amendment ofcharge — Itvests Courtwithpower butitdoes not castaduty upon the Court toorder amendment 20 25 The respondent wasacquitted ofacharge of obtaining money by false pretences, contrarytosections297,298and20of theCnminal Code, Cap 154 The particularsofthe offencewerethattherespondent« byfalse pretences andwithintent todefraud didobtain from one Antonakis Andreou the sum of £4,720» The particulars went on and descnbed whatwere the false pretences Attorney-General v. Kyprianou

(1988)The evidence, howe'-er, showed thai me rno/ie:/ went to the company Kypros Kyprianou Estates Ltd., of which the respondent was an employee. In fact, the whole defence of the respondent relied from the very beginning on this fact. 5 The trial court,relying on theauthority of R.v. Lurie [1951]2 All E.R. 704, acquitted therespondent. This is an appeal aga-nst such aaju'iial filed by the AttorneyGeneral undersection 137(l)(

1. a)(iii)of theCriminalProcedure Law, Cap. 155, i.e. on theground thatthetnalCourtwrongly applied the j n law tothe facts of this case. Counsel for the appellant argued that:(
2. a)The c'.urge was not defec^ve. (b)R ν Lurie, supra, is distinguishable from this case, because in thiscase thereis noevidence where themoneywent after itwas paid 15 to the respondent.This is in fact an insinuation thatthe respondent might have cheated his employers. (c)That thetrial Courtought to apply theproviso tosection 39 of Cap. 155. (
3. d)That thetrial Courtshould have exercised its power toamend the charge, either under section 83 or under section 85

(4)of the same Law. 20 Itmustbe notedthata passageinthejudgment of theCourtreads as follows:«Ifeet thatsince ithas notbeen includedinthecharge sheetthatthe 2 5 accused indicated the payment of monies to another and that the monies were used by anotherperson or company andespecially in the light of the fact that the whole defence relied ^.. this point,the Court cannot find the accused guilty and, therefore, he should be discharged». Held, dismissing the appeal:

(1)The charge was defective. The matter is covered by authority. (Leonidou v. The Police

(1987)2 C.L.R. 96)

(2)Recitationof the facts of R. v. Lurie,supra,showsthatthatcase cannotbe distinguished from thiscase.Sections297 and298 ofCap. 3 5 154 reproducesubstantially section32

(1)of theEnglish Larceny Act, 1916. Therefore, the word «obtains- in section 298 should be construed in the context of section 32

(1). «Obtained» means obtainedthepropertyandnotmerely thepossession oftheproperty. 210 30 2 C.L.R. Attorney-General v. Kyprianou r-orthisreason and inviewof theevidence, triecharge,intheway .c was framed, was nghtly dismissed 5 10

(3)The obj *t of ' e proviso to section 39 is to eliminate the possibility of unmented acquittals because of, inter alia, some misdescnptionorinaccuracyintheparticularsoftheoffence in cases, where it is shown that the accused is not thereby misled as to the nature of the case, which he has to meet Itsobject is notto render inactive sections 83, 84 and 85 of Cap 155, which regulate the amendment of a defective charge or information, or to provide a substitute for those sections Be thatas itmay, theproviso hasnoapplication incases where,in theopinionof theCourt,theaccused was infact misled by theerror 15 20 25 30 Although it does notseem thatthe tnaljudge directed its mindto the aforesaid proviso to section 39 the statement in the judgment quoted hereinabove suggest- that the Court felt that it would have been prejudicial and unfair foi the respondent inview of his line ot defence, ifthe natureof the case were to change

(4)Thepower of thetnalCourtundersection 85

(4)of Cap 155 to direct a count or counts to be added to the existing charge or information was considered in a number of decisions of thisCourt one of themost recent being thatof Leonidou ν The Police In this case, the tnal Courtcould notact undersection 85

(4)This section applies inthe first place, where the evidence establishes the commission of an offence not included in the charge, whereas section298 createsonlyoneoffence, which canbecommittedinone of two alternative ways The defectiveness inthis case could only be curedby amendment Moreover,section 85

(4)isnottobe applied to the prejudice of the accused

(5)Section 83 vests the Court with power to orderamendment, b u t does notcast upon ita duty todo so Appeal dismissed Casesreferred to Xenepoulosv Charaiambous, 1961 C LR 122, Attorney-General ν Hassan

(1971)2 C LR 316, 3 5 R ν Lune [1951]2 All ΕR 704 Leonidou ν ThePolice

(1987)2 C L R 96, R ν Ball[1951]2KB 109, R ν Smith [195012All ΕR 679 211 Attorney-General v. Kyprianou

(1988)Appeal against acquittal. Appeal by the Attorney-General of the Republic against the decision of the District Court of Limassol (Fr. Nicolaides, S.D.J.) given on the3rd November, 1987 (Criminal Case No. 29048/86) whereby therespondent wasacquitted oftheoffence ofobtaining 5 money by false pretences contrary tosections297,298and 20of theCriminalCode, Cap.

1. Gl.Hadjipetrou, for the appellant. L. Clerides, for the respondent. Cur.adv. vult 10 SAWIDES J.: The judgment of the Court willbe delivered by Boyadjis, J. BOYADJISJ.:Thisisanappeal filed bytheAttorney-Generalof the Republicagainst theacquittalofthe respondent bytheDistrict Court of Limassol on a single count charging the respondent, 15 accused No. 2 on the charge sheet, that together with a certain Kypros Kyprianou, accused No. 1, did obtain money by false pretences contrary to sections 297, 298 and 20 of the Criminal Code, Cap.
2. Accused No. 1 was not traced within the jurisdiction for the purpose of effecting service of the summons 20 upon him and the police withdrew the case against him. Thereafter the police proceeded to prove their case against the present respondent. An appcr.' against an acquittal can only be made or sanctioned, by the Artomdy-General on one of the four specific grounds 25 exhaustive'·• ^et out in section 137(l)(a) of Cap.
3. (See Xenopoulos v. Charalambous, 1961 C.L.R. 122, and The Attorney-General of the Republic v. AH Osman Hassan

(1971)2 C.L.R. 316). Learned counsel whoappeared fortheappellantstatedthatthis 30 appeal isbeing made undersub-paragraph (iii)of paragraph (a)of sub-section

(1)of section 137 of the Criminal Procedure Law, Cap. 155,whichprovides thatanappeal likethe present one may be made or besanctioned bytheAttorney-General onthe ground «thatthe lawwas wrongly applied tothe facts». 35 The salient factsof the caseappear on therecord before us.They are V.efly as follows: 212 2 C.L.R. Attorney-General v. Kyprianou Boyadjis J. The Particularsofthe Offence set out inthe charge-sheet were to the effect that:' «thj accused (ex-excused I and the Respondent) between the24th day ofNovember, 1983 and the 29th day ofAugust, 1986,atLimassol, inthe DistrictofLimassol, 5 byfalse pretences and with intenttodefraud, did obtain from one Antonakis Andreou of Pano Polemidhia thesum of£4,720,the false pretences being in substance and to the effect that they (accused)pretended tothesaidAntonakisAndreou thattheywere the owner of a building site atthelocality «Gonies» area ofK. 10 Polemidhia on Sheet/Plan LIII/56, Plot 480 Regn. No. 26780 whichtheyagreed andsoldthe1/2portionofthesaidbuildingsite for the sum of£5,000, whereas infact andtruth thesaid whole building site was transferred to their sister namely Photoulla Christodoulou Kyprianou ofDali.» 15 Insupport oftheircase the Prosecution called seven witnesses. On beingcalled upon tomakehisdefence, nosubmission having been made byhiscounsel attheclose ofthe prosecution case,the respondent made an unsworn statement from thedock alleging, inter alia, that he, being a mere employee of Kypros Kyprianou 20 EstatesLtd., washimself avictimofex-accused 1,that hehad not obtained any money forhimself and that themoney went tothe company Kypros Kyprianou EstatesLtd., which had issued tothe complainant receipts for all the sums which he had paid.The respondent hadbased hisdefence onthis point throughoutthe 25 proceedings and hiscounsel submitted inhisfinal addressthat the respondent should be acquitted on the sole ground that the prosecution failed toprove that hehadobtained any moneyfor himself. In itsjudgment the trial Court stated (a)that the respondent 30 made the false statements setoutintheParticularsofthe Offence, knowing that same were false, and(b)that, relying onthe false statements ofthe respondent, thecomplainant paid over to him certain moneys inrespectofwhichheissued receiptstothe effect thathehadreceiveditfortheaccountofKyprosKyprianou Estates 35 Ltd.The trial Court also stated that there wasno evidence to substantiate theallegation inthe Particulars of Offence thatthe respondent obtained anymoney forhisownaccount or benefit and, relying onthe authority offt.v.Lurie [1951]2AllE.R. 704, * The quotation ininverted commas isa verbatim reproduction oftheParticulars ofthe Offencesetoutinthecharge-sheet. 213 oyadjis J. Attorney-General v. Kyprianou

(1988)oncluded that the charge was defective and acquitted and scharged the respc/vlent on thissole ground, having ospeciaMy iken intoconsideration thatthewhole defence ofthe respondent !the trial wasbased on this point. Learned counsel appearing for the appellant conceded that no 5 v/idence had been adduced to prove that the respondent had btained the money forhisown account orthat he had used itfor imself. as it is alleged in the Particulars of the Offence. Yet, •lying, aswe havealready stated,onsection 137(l)(a)(iii)of Cap. r i

1. he argued before us that: (i)the trial Court erred in holding 10 iatthechargewasdefective and (ii)even ifthecharge werereally efective. the court ought not to have acquitted the respondent; istead. it ought either (a) to have convicted the respondent ;ithout any prior amendment of the charge applying the proviso ) section 39 of the Criminal Procedure Law, Cap. 155,or (b)to 15 ave exercised the discretion vested in it by section 83 and/or sction 85 of the said Law and effect, on its own motion, all mendments that the evidence warranted, and then proceed to onvict the respondent. The grounds of appeal in furtherance of which the aforesaid 20 rguments were made, are the following: «
2. The trial Court misapplied the law to the facts of the present case.
3. The trial Court wrongly found that the count was defective.
4. Alternatively and without prejudice to the above grounds, even ifthe chargewasdefective asfound bythetrial Court, this was no reason for the Court to discharge the accused in view of the statutory provisions of the Criminal Procedure Law, Cap. 155.» 25 30 Afourth ground setoutintheNoticeofAppealwas abandoned. Learned counsel for the respondent argued that the allegation the appellant set out in Ground 1above that «the trial Court isapplied the law to the facts of the present case» refers xlusively to the alleged wrong declaring by the Court of the 35 larc » defective and to the failure of "the Court to amend the targe ifitwere really defective. Counsel for the respondent also gued that none of the above complaints fall within the ambit "section 137(l)(a)(iii)ofCap. 155upon whichthepresent appeal : based. 214 4 ° Ζ C.L.R. Attorney-GeneraI v. Kyprianou Boyadjis J . We shall assume for the purpose of argument that the allegations of theappellant fall undersection I37(l)(a)(hi)of Cap. 155 and we shall proceed, on the aforesaid assumption, to examine themon theirmerits. 5 The first question to be determined is whether the charge is defective or not. Mr. Clerides for the respondent says that it is defective. Mr.Hadjipetrou for theappellant says that itisnot. The answer to the question is in the affirmative. The charge is defective. The matteriscovered by authority. InLeonidou v. The 10 Police

(1987)2 C.L.R. 96 the Supreme Court dealt with the question of when a charge or information may be considered as defective and,andatpp. 103 and 104. itrecited w:th approval the following statement of the law set out in Archboid's Criminal Pleading, Evidence and Practice,40th ed. p.52, para. 53: 15 20 «(a)Anindictmentisdefective notonlywhen itisbad onthe face of it,but also: (i)When it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because thp indictment charges offences not dislosed in that evidence or fails to charge an offence which is disclosed therein. (

1. ii)when for such reasons it does not accord with the evidence given atthetnal ft v. Ha//il9b8]52 Cr.App R 528. ft. v.JohalandRam [1972] Cr.App. R. 348-. 25 30 35 It is common ground that in the present case the evidence adduced does not accord with the allegation in the particulars o; the offence thatthe respondent «obtained» for hisown benefir the money with which thecomplainantwas induced topart relying or· the respondent's false statements. The charge is, therefore. defective inthis sense. The next question to be determined is whether, the defective charge having not been amended either at the instance of the prosecution or on the Court'sown motion,the Courtwas nghtin acquitting the respondent. Relying on the decision in the English case of ft v.Lurie(supra)Mr.Clerides for therespondentsaysthat the respondent was rightly acquitted. Mr. Hadjipetrou for the appellant, on the other hand, says that (
2. a)Lurie's case is distinguishable from the ·:resent case and the Court should not have followed it; and (
3. b)the Court should have applied the 215 Boyadjis J. Attorney-General v. Kyprianou

(1988)proviso to section 39 of Cap 155 and convict the respondent without amending the charge We shall first consider the submission that Lune's case is distinguishable from the present case What were the facts in Lune's case and what was actually decided init?Itwasadecision c of the Court of Cnminal Appeal The appellant had been found guilty with two other persons on two charges of obtaining money by false pretences contrary to section 32

(1)of the Larceny Act, 1916 The particulars of the first offence were that the appellant and his two co-pnsoners «with intent to defraud obtained from 10 Leslie Collier Nicholls a cheque for £2,500 byfalsely pretending thatthe Donella (Wine)Co ,Ltd ,wasthenafinancially sound and prosperous business and that the Royal Automobile Club was a customer of the said company and that £2,500 wasthen required for tfie purchase by the said company of whisky and that 15 they then intended to apply the proceeds of the said cheque substantialy for that purpose ·The othercount charged the same persons with having obtained a further cheque for £4,300 from Mr Nicholls by similar false representations Dehvenng the judgment of the Court of Appeal, Lord Goddard C J , said the 20 following at pp 705 and 706ofthe report «Sofar asthe charges offalse pretencesare concerned, the circumstances were that the appellant made representations which the jury by their verdict found were false to his knowledge The cheques which were obtained in 25 consequence of the representations were cheques made out by Mr Nicholls to the order of the company, and, therefore, Mr Nicholls intended that they should become the property of the company and that the company should receive the money from thebank Section C ioftheu»rrenv Act, 1016. 30 provides 'Every person who by any false pretence -

(1)with intend to defraud, obtains from any other person any chattel, money, or valuable secunty, or causes t.. procuresany moneytobe paid,oranychattelorvaluable 35 secunty tobe delivered to himself orto any other person fortheuseorbenefit oronaccountofhimself oranyother person shall be guiltyof a misdemeanour Theobjection which wastakenbycounselfor the appellant with regard to the conviction for false pretences was that 40 although the indictment alleged that the appellant obtained 216 2 C.L.R. 5 10 15 20 25 30 Attorney-General v. Kyprianou Boyadjls J. the cheques,hedidnot,infact,doso.Thecompany obtained thecheques,and,therefore, thechargeshouldhavebeen laid that he obtained the cheques forthe useofthecompany, not that he himself obtained them. Itis a technical point and, in one sense, has no merits, but it is a good point. R. v. Ball, decided by the Court only on Feb. 19, 1951,had no!'_••..ui reported at the time when the commissioner summed up in this case. In ft. v. Balland in ft v. Smith the court said that Obtained' means obtained the property and not merely the possession. Ifthecheque wasmade out,asitwasinthiscase, to the company, the appellant and his co-prisoners might have been guilty of making false pretences with intent to defraud, buttheydidnotdosowiththeintentofobtaining the cheques for themselves. They were obtaining them for the company, and, therefore, technically the indictment was wrong. Where a person makes a false pretence and obtains property for somebody else,the indictment must allege that, andnotthatheobtained itforhimself.Inthiscasethe cheques were made out to the company and there is no doubt the company owned them. It was always intended that the company should be the owner. The only banking account into which the check could have gone was the banking account of the company. If, for instance, a director had endorsed themandpaidthem intohisown account,hewould havebeenguiltyofafraud onthecompany.Moreover,sinceA.L. Underwood v. Bank of Liverpool, no bank will now allow a cheque made out to a limited company to be paid into any account exceptthatofthecompany. Forthesereasons,inthe opinion of the court, the convictions of obtaining money by false pretences must be quashed, because the evidence did not support the charges.» Mr.' Hadjipetrou has argued that, whereas in Lurie's case the appellant could not possibly benefit personally with the amounts ofthechequesissuedbythecomplainantinthecompany'sname, 35 in the present case there is no evidence where the cash money went after itwaspaid by the complainant to the repondent. The evidence,counsel added,wentonlyasfarasshowingthatreceipts were issued forsuch payments in the name of Kypros Kyprianou Estates Ltd., either by the respondent himself or by other 40 employees of the aforesaid company. Counsel evidently meant that, for all we know, the respondent might have cheated his 217 Boyadjis J. Attorney-General v. Kyprianou

(1988)employers and kept the money for himself, or at least it was possibleforhim,unliketheappellantinLurie'scase,tohavedone so.We donotagree with thesubmission thatLurie'scase maybe properly distinguished from the present case on the aforementioned grounu. When the complainant in the present 5 case was partingwithhismoneyhealwaysintendedthatitshould gotoKypros Kyprianou EstatesLtd.,i.e.thecompanyfrom which hehadagreed tobuy thebuildingsite.Receiptswereissuedtothe complainantin thenameof theaforesaid company inrespectof eachpayment,eitherby therespondenthimself orbysomeother ιο employee ofthecompany.Itisnotexpectedthatotheremployees of the company would issue such receipts in respect of money received by theappellantbutnotaccountedfor by him.Theonly conclusion is that the respondent was intending that Kypros Kyprianou Estates Ltd.would be theowner ofthemoneypaidto 15 himortootheremployees ofthecompanybythecomplainantas aresultofthefalsestatementsheldouttohimbytherespondent. Initsjudgment the Courtrightlypointed outthatsections 297 and 298 of our Criminal Code reproduce substantially the provisions of section 32

(1)oftheEnglish LarcenyAct 1916. This 20 being so, the word «obtains» in our section 298 should be construed in the manner inwhich it had been construed in the contextofsection32

(1)oftheLarcenyAct 1916,inthecasesofft. v.Lurie(supra),ft.v.Ball[1951]2K.B.109andft.v.Smith[1950] 2 All E.R.679, where itwas saidthat«obtained» meansobtained 25 the property and not merely thepossession of theproperty.For this reason the charge of «obtaining» money by false pretences against the respondent in this case, in the way in which it was framed, wasrightlydismissedbythetrialCourtbecause itwasnot supported bytheevidence adducedby theprosecution,towhich 30 we have referred earlier, unless, of course,thesecond leg of the submission ofcounseltotheeffectthattheprovisotosection39of Cap.155empoweredtheCourttoconvicttherespondentwithout amendingthecharge,wereright. It becomes, therefore, pertinent to examine at this juncture, 35 whether, in the circumstances of the instantcase, theproviso to section39of Cap. 155,properly construed,couldhavesavedthe chargefromdismissalonthegroundofitsaforesaid defectiveness. Section 39 of Cap. 155 which has no counterpart in any enactment regulating criminal procedure in England, contains 40 provisionsregardingtheframingofchargesandsaysthatacharge 218 2 C.L.R. Attorney-General v. Kyprianou Boyadjis J. shallnotbeopen toobjection inrespectof itsform orcontents ifit is framed in accordance with the several requirements set out therein.Attheendofthesectionthereisaprovisotowhichcounsel for the appellant attributed particular importance for the 5 determination ofthisappeal. Itreadsas follows: 10 «Provided that no error in stating the offence or the particulars required to be stated in the charge shall be regarded atanystage of the caseasnon-compliance with the provisionsof thisLaw unless,inthe opinion oftheCourt, the accused wasinfact misled bysuch error.» Weagree with the submission of counsel for the appellant that theobjectoftheprovisoistoeliminatethepossibilityof unmerited acquittals because of, inter alia, some misdescription or inaccuracy inthe particularsofthe offence inthe caseswhere itis 15 shown thattheaccusedisnottherebymisledastothenatureofthe casewhich hehastomeet.Forallweknow,theprovisohasnotso far been the subject of analysis or in depth examination in any Cyprusdecision. Weare oftheopinion, however, thatitsobjectis not to render inactive sections 83,84 and 85 of Cap. 155 which 20 regulate the amendment of a defective charge or information, or toprovide asubstitute forthose sections. 25 30 35 40 Bethatasitmay,theprovisohasnoapplication incaseswhere, inthe opinion of the Court, the accused wasinfact misled by the error. In the judgment of the trial Court we could not trace a definite finding on the issue whether the respondent would be misledor not asto the casehe had tomeet, asa result of the subjudice inaccuracy inthepaiticularsoftheoffence. Theattentionof thetrialCourthadnotbeen drawnbyeithercounseltotheproviso and itsrepercussionson thedefectiveness ofthechargeand there isnothing inthejudgment toshow thatthe Court had directed its mind to it. Counsel for the appellant submitted that, in the circumstances of the present case, the respondent could not possiblyhave been misled inanywayifthetrialCourt had followed the above suggested course. Counsel for the respondent, on the other hand, suggested that the respondent would be misled in view of the fact that he had based his defence mainly, if not entirely, on the fact that, bythe timetheprosecution case closed, no evidence had been adduced to prove the allegation in the particulars of the offence that he had obtained any money for his own benefit. In view of this, counsel added, he had advised the 219 Boyadjls J. Attorney-General v. Kyprianou

(1988)respondent not to give evidence in his own defence He further submitted that,in dismissing the charge, the tnal Court expressly referred tothe aforesaid defence of the respondent We have considered the arguments of counsel and we have come to the conclusion that, although it does not seem that the 5 trialjudge directed itsmind totheaforesaid proviso tosection 39, there isastatementinthejudgment which suggeststhattheCourt felt that it would have been prejudicial and unfair for the respondent inview of his line of defence, if the nature of the case which he had tomeet,as disclosed intheparticulars oftheoffence, 10 were to change The statementin thejudgment of the tnalCourt, whtch iscapable of such an lnterpetation,appears atρ 106 of the record and reads as follows «Αισθάνομαι ότι α φ ο ύ δεν περιλαμβάνεται στο κατηγορητήριο σ α φ ώ ς οτι ο Κατηγορούμενος 15 υποκίνησε την καταβολήχρημάτων σε άλλο και ότι τα χρήματα χρησιμοποιήθηκαν α π ό άλλο π ρ ό σ ω π ο ή εταιρεία και ιδίωςενόψει τ ο υγεγονότος ότι ολόκληρη η υπεράσπιση τ ο υ στηρίχτηκε στο σημείο αυτό, ότι το Δικαστήριο δεν μπορεί νατον βρει ένοχο καισυνεπώς ο 20 Κατηγορούμενος θ α πρέπει νααπαλλαγεί.» {«I feel that,since itis notclearly stated in the charge sheet thattheaccused instigated thepaymentofmoneyto somebody else and that the money was used by another person or company and especially in view of the fact that his whole 25 defence was based on thatpoint, the Court cannotfind him guilty and therefore the accused must be discharged») If, therefore, in the circumstances of the present ca./\ the possibility of the respondent being misled as to the case he had to meet,could notbe excluded, theCourtcouldnot,even ifitwere 30 otherwise entitled to, convict the respondent without amending the charge, by applying the proviso tosection 39 of Cap 155 as suggested by counsel for the appellant The last question that remains to be examined is whether the omission of thetnalCourttoexercise atsome stageorotherof the 35 proceedings, on its own motion, its power under the relevant 220 2 C.L.R. Attorney-General v. Kyprianou Boyadjis J. provisions of the CriminalProcedure Law, Cap. 155, and amend the defective charge, renders itsverdict of acquittal wrong in law. Counselfor theappellantsubmitted thatthetrialCourtcould have amended the charge on its own motion, acting either under section 85

(4)of Cap. 155 orundersection 83 of thesame Law. Thepower of thetrialCourtundersection85

(4)*of Cap. 155 to direct a count or counts to be added to the existing charge or information was considered inanumberof decisions ofthisCourt, one of the most recent being that of Leonidou v. The Police (supra). The power is exercised only at the conclusion of the trial and isexpresslysubject tothe following conditions: (i) it must be established by the evidence adduced that the accused has committed an offence or offences not contained in thecharge or information; (ii)theaccused cannotbe convicted of such offence or offences without amending the charge or information; (iii)such offence or offences are notpunishable with a greater punishmentthanthepunishmenttowhich hewould be liable ifhe were convicted on thecharge or information;and iiv)theaccused would notbeprejudiced thereby inhis defence. Following the abo1 Λ analysis, the question tobe determined is whether,inthe circumstancesof thepresentcase,theCourtcould actundersection 85

(4)or not.Theanswer tothequestion isinthe negative. !n the first place, the evidence adduced in the present case does not establish that the respondent has committed an offence which is not contained in the charge Itonly establishes that, by his false pretences, he induced the complainant to part with his money infavour of Kypros Kyprianou EstatesLtd.Section 298 of our Criminal Code creates only one offence and provides * *

(4)ifatthe conclusionof the tnalthe Courtisof opinionthatithas been established by evidence that the accusedhas committed an offence or offences not contained in the chargeormforniationand of whichhe cannot be convictedwithoutamending thechargeor information, and upon his conviction for which he would not be liable to a greater punishment thanhe wouldbe liable to ifhe wereconvictedon the charge orinformation, and that the accusedwouldnot be prejudicedtherebyinhis defence, the Courtmaydirect acount or counts to be added to the charge orinformationchargingthe accusedwithsuch offence or offences, and the Courtshallgive theirjudgment thereon as if such count or countshadfomieda partof the originalcharge orinforniaOon * 221 Boyadjis J. Attorney-General v. Kyprianou

(1988)two alternative ways of committing it. This single offence was contained in the charge against the present respondent. The charge wasdefective only because itprovided the one alternative way of committing it which was not supported by the evidence adduced. Such defectiveness could have been cured by 5 amendment under section 83of Cap. 155 before the conclusion of the trial. Therefore, condition (i)above, did not apply and the Court could not have acted under section 85

(4)of Cap.

1. There is, moreover, the requirement that the respondent ought not to be thereby prejudiced in his defence, which is set out in 10 paragraph (iv)above.Wehavealreadydealtwiththisrequirement whenexamining the applicability of the proviso to section 39 ot Cap. 155.Wewould like,however, toadd inthisrespectthat one oftheparamount dutiesofthetrialjudgeistosecuretoaillitigants, especially topersonsaccused ofcrimes,afairtrial.One important 15 aspect of thisduty istoensurethat nothingisbeingdone orsaidin a criminal trial that may prejudice an accused person in his defence. This paramount duty iscast upon our Courtsby Article 30 of orr Constitution and by Article 6 of the European Convention on Human Rightswhich has been ratified in Cyprus 20 bytheEuropean Convention onHumanRights(Ratification) Law,
2. There isno doubt that the trialJudge had power toamend the charge since it had rightly appeared to him that same was defective. Hecouldhave exercised suchpoweratanystageofthe 25 trial. The judge could have done so either at the instance of the prosecution or acting on his own motion. In either case the procedure laiddown insection84ofCap. 155oughttohavebeen followed. Section 84 prescribes a procedure that eliminates the danger of anyprejudice resulting to an accused person byreason 30 of an amendment of the charge initiated orallowed bythe Court. Counsel for the appellant does not dispute that, inthe first place, itwasthe duty of the prosecution tohave applied to theCourt to amend the charge. Such duty arose the moment evidence was beingadduced that, asaresultoftherespondent'sfalsestatements 35 held outtothecomplainant, thelatterwasinduced topartwithhis money for the benefit of Kypros Kyprianou Estates Ltd.This was notdone.WasthetrialCourtunderasimilarduty?Doessection 83 of Cap. 155,properly construed, casta duty on the trialCourt, as distinct from a mere right, to direct amendment of the charge 40 which appears to it to be defective for one reason or another? 222 2 C.L.R. Attorney-General v. Kyprianou Boyadjis J . Does the failure or omission of the Court to exercise, on itsown motion, its powers at the proper steg< of the proceeu..igs under section 83 of Cap. 155renderhisverdict ofacquittal bad in law? For all we know the questions have not been answered by this 5 Court in any other case till today. No authority wa*«cited to us covering the issue which we must presently determine. Having regard to the wording of section 83 and having in mind the adversary system of administration of justice prevailing in this country, wetakethe viewthatthe object ofsection83wasnotto 10 castupon the trialCourt thedutysuggested bythe appellant. Inthe result,the appeal isdismissed. Appeal dismissed. 223 INDEX TO SUBJECT MATTER PART 2 Page ABANDONMENT OF POST OFSENTRY, contrary to section 54 (e) of the Military Code—See SENTENCE—Aban­ donmentof post of sentry ADMISSION—See EVIDENCE—Admission AGENT PROVOCATEUR—Entrapment by—It is not a substantive defence (KassarandAnother ν Republic) 96 AMENDMENTOF CHARGE—See CRIMINALPROCEDURE —Charge APPEAL—Bail—Exercise of discretion by tnal Court—Interfe­ rence with such exercise on appeal—Pnnciples appli­ cable (Loukaides and Others ν Police) 119 rinding as to—Interference with, on appeal—Justified in the circumstances of thiscase (Fanierosv Republic) 13 Cnminal appeal—Composition of the Court heanng such an appeal—The three Judge bench constituted under section 11

(3)of the Administration of Justice Law, 1964 (Law 33/64)—Numencal strengthening of—Ultimately a matter of discretion—Pnnciples governing its exercise {ΑΙ-Hamad ν Police) 164 New tnal—Conviction based on inadmissible evidence— Whether new tnal should be ordered—Pnnciples appli­ cable (Parpas ν Republic) 5 Sentence—Interference with on appeal—The concept of «manifestly excessive»(Constantinides ν Police) 18 Sentence—Interference with,onappeal—Pnnciples appli­ cable {Efthymiou and Another ν Republic) 189 ARREST—Meaning of—See EVIDENCE—Fundamentalnghts protected by the Constitution ASSAULT—On a police officer in the execution of his duty— See SENTENCE—Assaulting apolice officer ASSIZE COURT—See COURTS OF JUSTICE 224