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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V13) 1 CLR 74A
1927 November 17
[BELCHER, C.J., LUCIE-SMITH, J., SERTSIOS, J.]
REX
v.
JOSEPH STYLIANOU.
CRIMINAL PROCEDURE-RES JUDICATA-AUTREFOIS ACQUIT-LAW 1 OF 1886, SECTION 39-PROVISIONS OF CRIMINAL APPEAL ACT, 1907-GUIDING MARKS FOR SUPREME COURT-APPEAL NEED NOT BE ALLOWED IF NO SUBSTANTIAL MISCARRIAGE OF JUSTICE-ADDENDUM TO ARTICLE 200, OTTOMAN PENAL CODE.
Appeal by accused from conviction by a Criminal District Court.
Triantafyllides and Haji Petrou for appellant.
Chrysafinis, Junior, for Crown.
The facts are sufficiently disclosed in the judgment of the Court delivered by the Chief Justice.
Judgment: The facts in this case are somewhat unusual. There was a preliminary enquiry by a Magisterial Court a charge against appellant of seducing a woman under promise of marriage under the Addendum to Article 200 of the Penal Code. A settlement was reached between those concerned: the case in the Magisterial Court was, therefore, not proceeded with. Under Clause 55 of the Courts Order, 1882, the Magistrate should have ordered a stay: what he did was to "dismiss" the charge, an order outside his powers.
Subsequently this entry was altered and made to read "struck out": on what legal authority I do not know. At all events there was a fresh preliminary enquiry later on and in the course of that enquiry the Magistrate (wrongly, for he could only have done so on a trial, by Section 47 of Law 1 of 1886) referred to the Supreme Court the question of whether what had happened at the first enquiry had established a defence of res judicata, by which one supposes to be meant antrefois acquit. At all events the Supreme Court answered the question and answered it in the negative, so that the Magisterial Court proceeded, and committed the accused for trial; and the Criminal District Court before which the trial was held, the defence of autrefois acquit being raised before them, intimated that they considered they were bound (by the Supreme Court's answer in the preliminary enquiry) to rule that defence out, without going into the merits of it for themselves, and as they found accused's guilt proved on the facts, they convicted and sentenced him: wherefrom he now appeals to this Court, both on law, inasmuch as he says that the conviction should be quashed because a defence raised was, improperly, not considered; and on the facts, inasmuch as neither seduction nor refusal to marry was proved.
On the law point: the wording of Section 39 of Law 1 of 1886 shows that the powers of the Supreme Court to confirm or set aside the finding are not limited in the way in which are those of the Court of Criminal Appeal in England by the provisions of the Criminal Appeal Act, 1907. But this Court may, I think, usefully refer to those provisions as in the nature of guiding marks for it in the exercise of its discretion. One of those provisions is that the Court may dismiss the appeal even if they think that the point raised in the appeal might be decided in favour of the appellant, if they consider that no substantial miscarriage of justice has actually occurred.
We ought, in any event, to consider closely the point of law here in its effect on the merits of the case before we decide. That point is, that the Court below misdirected itself in holding that it was bound to treat the defence of autrefois acquit as chose jugée. It is argued by the appellant's counsel with considerable force that, whatever there was or was not of sustainable matter in that defence, at all events the Court might have acquitted the accused had it listened to that defence. He lost, in effect, a chance which he ought to have had. That there was a misdirection is clear. The defence of autrefois acquit was not shut out; because it had never been decided in any way that bound that Court. What is this defence when one examines it? It is that as the first enquiry ended in effect in accused's discharge, he could not be tried again. That defence needs only a glance to see that it could not be sustained if the Court below dealt with it, after consideration, in accordance with legal principles. The Court might have gone wrong in its law, it is true, and then accused would have been acquitted: but can it be said that any miscarriage of justice has occurred by failure to give consideration to a defence which could only itself prevail if a wrong legal decision were given? I think not, and that for this reason we should affirm the conviction if the appellant rests the case on this ground alone.
As to the fact of seduction we find there was abundant evidence and the Court could not have properly come to any other conclusion.
As to the promise not having been broken, there was evidence on which the Court below could find that the promise was unconditional. I think that the reasons for accused's refusal are in any case immaterial. If one looks at the Addendum to Article 200 we find nothing said about it being open to defendant to justify his refusal on the ground that the woman or some third party had failed to carry out their part in a marriage settlement: the man in such a case acts at his own peril as regards the Criminal Law.
The appeal, therefore, must be dismissed: conviction and sentence affirmed: sentence to run from to-day
Appeal dismissed.