(1989)1989February 15 (BOYADJIS,J.) INTHEMATTER OFANAPPLICATION BYORON BEHALF OFYIANNAKISP.ELUNAS,FORLEAVETOAPPLY FORANORDER OFCERTIORARIAND/OR PHOHIBITION AND INTHEMATTEROFCRIMINALCASENO.32/89 PENDING BEFORETHEDISTRICTCOURTOFLIMASSOL. (ApplicationNo. 12/89). Prerogative Orders—Certiorari/Prohibition —Leave to apply for— Principlesapplicable — Theconcept ofa'prima faciecase»andof •sufficientlyarguablecase». Constitutional Law —Criminal cases—Right to a hearing within reasonable time — Constitution Art. 30.2 —Applicant arrested in 1984 inconnection withaninvestigationofallegedtheftschargedfor the firsttimein1989 and wascommitted tortrialbyAssizes—Filing of information followed —Leave to apply for certiorari and prohibition granted. 5 European Convention for the Protection of Human Rights— Criminal 10 cases —Right to hearing within reasonable time —In the circumstances of the case, accused, who complained of unreasonable delay inprosecuting him, wasgranted leave to apply forcertiorariand prohibition. The facts ofthiscase need not besummarized, astheysufficiently appear inthe hereinabove headnotes. 15 Leave toapply forcertiorari andprohibition granted. Casesreferred to: Bell v. Director of Public Prosecutions of Jamaica and Another [198512AllE.R.585; InreMaroulleti
(1970)1C.L.R.75; InreKakos
(1985)1C.L.R.250; 106 20 1 C.L.R. InreElllnas IntheArgyrides
(1987)1C.L.R.23; Ellinas v.Republic
(1989)1C.L.R.17; Application. Application for leave to apply for an order of certiorari to f> remove into the Supreme Court for the purpose of quashing the committaloftheapplicantbytheDistrictCourtofLimassolfortrial before theAssizeCourt inCriminalCaseNo.32/
- G. Cacoyannis, forthe applicant. BOYADJIS J. gave the following judgment. This is an 10 application filed on behalf ofYiannakisP.Ellinas,of Limassol,for leave to issue and serve a motion for orders of certiorari and prohibition.The object of the orderof certiorariistoremove into the Supreme Court for the purpose of its being quashed the committaloftheapplicantbytheDistrictCourtofLimassolfortrial 15 before theAssizeCourtofLimassolfortheoffences charged inthe charge sheet dated 3rd January, 1984, made by the said District Court on 13th January, 1989 in Criminal Case No. 32/
- The object oftheorder ofprohibition istoprohibittheAssizeCourtof Limassolfrom proceeding toarraign and/ortotrytheapplicantin 20 CriminalCase No.32/89 on thebasisofthesaidcommittal made bytheDistrictCourtofLimassolon 13thJanuary, 1989,and/oron the information dated 19th January, 1989, filed by the AttorneyGeneralonthebasisand/orinconsequence ofthesaidcommittal. The applicant further prays that all proceedings in the said 25 Criminal Case No.32/89 before the Assize Court of Limassol be stayed until after the hearing of the motion or further order and that allnecessary and consequential directionsbe given. The main ground upon which the said reliefs are sought isthe contention ofapplicant'slearnedcounselthattherehasbeensuch 30 an inordinate delay in prosecuting the applicant for the offences setoutintheinformation filedbytheAttorney-GeneralinCriminal CaseNo.32/89 following the committal of the applicant on 13th January, 1989, that the constitutional and legal rights of the applicant under Article 30.2, 33 and 35 of the Constitution and 35 Art.6.1 ofthe European Convention on Human Rightsratified by Law39 of 1962have been infringed. Therefore, counsel alleged, the committal of the applicant for trialbefore the AssizeCourt of Limassol in Criminal Case No. 32/89 isnull and void and of no effect whatsoever, itsinvalidity being an error of lawapparent on 107 BoyadjisJ. InreEllinas
(1989)theface oftherecordand/orsuchcommittalwasmadeinexcess of the Court's jurisdiction or power. Counsel added that the prosecution of the applicant through Criminal Case No. 32/89 amounts, inthe circumstances,toan abuseoftheprocessofthe Court. Thefactsuponwhichtheapplicationisbasedaresetoutinthe affidavit swom by the applicant's wife, filed in support of the application, verifying, inter alia, the brief historical factual background setoutintheapplication.Thestorythereinsetoutis brieflythis: Michael brothersfiledtheir complaint with the Police on 8th December, 1984 and the applicant was arrested on 19th December, 1984, on the strength of a judicial warrant. On the samedayalargevolumeofbooks,files,accountsanddocuments belongingtoLightningTransportand/ortheapplicantwereseized 15 bythePoliceandarekeptbythemtillto-day. ThePolicedidnothingtostartanaccountsinvestigationintothe affairs ofLightningTransportand/ortheapplicant. By a letter dated 30th March, 1985, eleven bus owners, includingtheMichaelbrothers,instructedPetridesandModinos,a 20 firm ofaccountants, to carryouta general investigation intothe affairs of LightningTransport purportedly pursuant tosection 30 ofthePartnership Law,Cap. 116.Theseaccountantscarried out their investigation in the Police Station where the books, files, accounts and documents which the Police had seized on 19th 25 December, 1984,werekept.Theinvestigationcoveredtheperiod between June 1973 and June
- The. investigation commenced inMay1985andended on2ndJuly, 1986,without thePoliceeverurgingaspeedingupthereof. On 4th July, 1986, the applicant was formally charged that 30 between 1.3.1974and 18.6.1983hestolethesumof£52,343.Fourcriminalcaseswerefiledagainsttheaccusedsubsequently totheaforesaid formal chargeasfollows:CaseNo.22444/87on 18.8.1987; Cases No. 22445/87 and No. 22446/87 on 19.8.1987;andCaseNo.23802/87on11.9.1987.Theapplicant 35 wasthereby charge with 115countsoftheft which heallegedly committed during the period 1981 -
- On 5.2.1988 the DistrictCourtofLimassolcommittedtfieapplicantfortrialbefore theAssizeCourtnextsittinginLimassolineachoneofthesaidfour 108 5 10 1C.L.R. InreEHinas Boyau^isJ. criminal cases. Informations were filed only inCasesNo. 22446/ 87 and No.23802/
- On 26.8.1988theAssizeCourtof Limassolfound the applicant guilty in Case No. 22446/87 and sentenced him to 18 months' 5 imprisonment. Applicant's appeal against his conviction is still pending before theSupreme Court. CaseNo.23802/87standsfixedforhearingbeforetheLimassol AssizeCourton 20.2.
- On3.1.1989 afifth criminalcasewasfiled againstthe applicant 10 with the District Court of Limassol. It is Case No. 32/89 and contains38countsallchargingtheapplicantwiththefts ofvarious amounts belonging to Lightning Transport company, allegedly committed between March 1980 and January
- On 13.1.1989 the applicant was committed for trialby the Limassol 15 WinterAssizes. Pursuanttotheaforesaid committal,theAttorney-General filed on 19.1.1989 an Information inthesaid CriminalCaseNo.32/89 chargingtheapplicantwithstealingvariousamountsallegedtobe the property of Lightning Transport, during the period between 20 8.3.1980 and 7.9.
- The case now stands fixed before the Limassol Assizes on 20.2.1989 and the Court shall proceed to hear the case unless it isprohibited by the Supreme Court from doingsothrough the issueof an order of prohibition. Learned counsel for the applicant submitted that in the 25 determination of any criminal charge against him, the applicant hastherightsafeguarded byArt30.2 ofthe Constitution and also byArt.6.1oftheEuropean Convention onHumanRights,toafair and public hearing within a reasonable time; that, in the circumstances of this case, the period to be taken into 30 consideration for verifying whether this provision has been observed begins on 19th December, 1984, when the applicant was arrested by the Police; that, having·.regard to the criteria for judging the reasonabless of the length of proceedings coming within the scope of Art. 6.1 of the Convention, laid down in a 35 number of decisions reported in the Digest of Strasbourg CaseLaw Relating to the European Convention on Human Rights, Volume 2, there has been an unreasonable delay in the prosecution of the applicant for the offences set out in the information in Criminal Case No.32/89; and that the applicant's 40 constitutionalandlegalrightshavingbeen infringed bythefilingof 109 BoyadjisJ. InreEllinas
(1989)the Criminal Case No. 32/89 against him, by his subsequent committal for trial before the Limassol Assizes and by the consequent filing by the Attorney-General of the Information in the aforesaid criminal case,the Court has a duty under Art.35of the Constitution to ensure that the applicant's aforesaid rights 5 are protected from violation by issuing the prerogative orders applied for. This isthe first case where the reasonableness of the length of criminal proceedings coming withinthe scope of Art.30.2 of the Constitution and Art. 6.1 of the European Convention falls to be 10 considered bythisCourt.The matter has been considered by the PrivyCouncil inthecontextofsection 20
(1)oftheConstitutionof Jamaica, safeguarding the right to a «fair hearing within a reasonable time», in the case of Bell v. Director of Public Prosecutions of Jamaica and Another, [1985] 2 All E.R. 585, 15 where itwasheld that: «
(1)Regardless of theposition at common law,the express wordsofs.20(l)oftheConstitutionofJamaicaplainly sufficed to confer on an accused the right to a fair hearing 'within a reasonable time'. Furthermore, the accused did not have to 20 show any specific prejudice before being entitled to have chargesagainsthimdismissedbecauseofunreasonable delay in bringing him to trial. Indetermining whether the accused had been deprived of a fair trial by reason of unreasonable delay factors which were relevant were the length of the 25 delay, the reasons given by the prosecution to justify the delay, theefforts made bytheaccused toasserthisrightsand theprejudice tothe accused.The assessment ofthose factors would necessarily vary from jurisdiction to jurisdiction and case to case. In particular, the prevailing system of legal 30 administration and economic,socialandculturalconditionsin Jamaicahadtobetakenintoaccount; Barkerv.Wingo
(1972)407 US adopted.
(2)Onthe facts,theoperative periodofdelaybegan on7th March, 1979, when the Court of Appeal ordered a retrial. 35 Although thedelaythereafter of32 monthsinthe Gun Court would not have amounted to an unreasonable delay in a normal trial, given the conditions prevailing in Jamaica, it was unreasonable in the case of the appellant's retrial and it infringed hisrighttoafairhearingwithinareasonabletime.It 40 110 1C.L.R. InreEllinas BoyadjisJ. followedthattheappellantwasentitledtoadeclarationtothat effect andthathisappealwouldbeallowed». Atthepresentstageoftheproceedings,thatofobtainingleave onanexparteapplicationfortheissueofanorderofcertiorariand 5 prohibition, the Court need not go into the matter thoroughly because thisisnotthestagewheretheapplicant'scomplaintand contentionsareexaminedanddeterminedconclusively. Theremedyisdiscretionaryandtheprinciplesapplicabletothe exerciseoftheCourt'sjurisdictionarethesamewiththoseapplied 10 inEngland.Thequestionwhichfallsfordeterminationatpresentis whethertheapplicanthassucceeded inmakingoutaprima facie casesufficiently tojustifythegrantingofleavetohimtomovethis Courtinduetimetoissuetheprerogativeordersappliedfor:Inre Loucia Maroulleti
(1970)1C.L.R.75.Ifanarguable issuearises 15 outoftheapplicant'ssubmissionswhichmeritsananswer, leave should be granted.There are numerous authorities dealingwith theconceptsof«aprimafaciecase»and«asufficiently arguablecase».Itseemsthatthetwoconceptsareidentical,bothdemanding theexistenceonfirstviewofaconvincingenoughcase.Seefore20 xambleInreKakos
(1985)1 C.L.R.250,InreArgyrides
(1987)1 C.L.R. 23,andinEllinasv. Republic
(1989)1 C.L.R. 17. Having considered the submission of counsel, without atthis stagedecidingthevaliditythereof orwhethertheinfringementof the applicant's constitutional or legalrightscomplained of has 25 taken place or not, I am of opinion that the applicant has succeeded inmaking out an arguable casedeserving an answer and a more thorough consideration after leave is granted as applied for. Leave is, therefore, granted to apply for certiorari and 30 prohibition.Theapplicanttofilehisapplicationwithin8daysfrom to-day.Inthemeantimetheproceedingsbefore theAssizeCourt ofLimassolinCriminalCaseNo.32/89againsttheapplicantshall stay. The stay shall continue to operate until further order if, pursuant to the present leave,the applicantfileshisapplication 35 withinthetimeprescribedhereinabove. Leavegranted. Ill