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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V22) 1 CLR 84
1957 April 11
[BOURKE, C.J., ZEKIA AND ZANNETIDES jj.]
REGINA,
v.
NICOS IOANNOU AND OTHERS.
(Criminal Appeal No. 2086).
Criminal Procedure-Special Courts-Preliminary inquiry by Justice of Special Court-Committal to Special Court-Special Court Law, 1955, sections 8, 9, 12, 17-Criminal Procedure Law, Cap. 14, section 91 (i).
The appellants were committed by a Justice of the Special Court, acting under section 9 (2), as amended, of the Special Court Law, 1955, for trial by the Special Court composed of a Judge empowered to try specified offences under section 8 of the same Law. That Court had been sitting from day to day in Nicosia since its establishment in November, 1955, according as there were cases to be tried. The appellants were tried and convicted.
It was contended on behalf of the appellants that the Special Court Justice was in the same position as a District Court Judge when holding a preliminary inquiry, and that he committed the appellants for trial to a Special Court deemed to be an Assize Court (under section 8 of the Special Court Law, 1955) then in session in the district without the consent of the appellants and the Attorney-General, contrary to the provisions of section 91(i) of the Criminal Procedure Law, Cap. 14; and that consequently, the committal was bad and the proceedings were a nullity.
Held : (1) That a Special Court composed of a Judge cannot, by virtue of section 8 of the Special Court Law, 1955, be or be deemed to be an Assize Court for the purposes of that part of section 91 (i) of the Criminal Procedure Law, Cap. 14, relied upon in support of the appellants' argument.
(2) That, having regard to the provisions of section 17 of the Special Court Law, 1955, the particular provisions of section 91 (i) of the Criminal Procedure Law, Cap. 14, which were relied upon by the appellants (being inconsistent with the Special Court Law, 1955, and notably with section 12 and directions authorised thereunder which had the force of Law) were inapplicable to committals to the Special Court.
(3) That, consequently, the appellants were properly committed for trial to the Special Court.
Judgment of trial Court affirmed.
Appeals against conviction.
The appellants, Nicos Ioannou, Andreas Afxentiou and Christos Apostolou, were convicted by the Special Court sitting in Nicosia (Case No. 598/57) on the 28th February, 1957, of possessing firearms and ammunition without lawful authority or excuse, contrary to Regulation 52 (c) of the Emergency Powers (Public Safety and Order) Regulations, 1955 to (No. 17) 1956, and were sentenced by John J. to death.
M. A. Triantafyllides and T. Papadopoullos for the appellants.
R. Grey for the Crown.
The facts are fully set out in the judgment of the Court which was delivered by:
BOURKE, C.J.: The three appellants were convicted by the Special Court of the offences of possessing firearms and ammunition without lawful authority or excuse contrary to Regulation 52 (c) of the Emergency Powers (Public Safety and Order) Regulations, 1955 to (No. 17) 1956, and were sentenced to death.
On the 15th January, 1957, three policemen acting upon information went to a place near the village of Yeradjes. At the foot of a tree they found a wooden trap door which was covered with earth and stones. On lifting this cover a vertical shaft was revealed in which there was a ladder. On an instruction to come up unarmed the three appellants emerged from the hole in the ground and were arrested. The shaft led into a small room that appeared from its contents to have been used as a kitchen. There was an opening from this room into a larger chamber which contained a great many articles such as tinned food, medical supplies, books, writing materials, wireless and clothing. Three separate piles of bedding were neatly placed one on top of the other against the back wall. Hanging unconcealed from pegs on the right as one entered were six shot guns and two loaded revolvers. Beside these weapons were two loaded sten guns leaning against the wall with the butts on the ground. The Police Officers also found in this room the large quantity of ammunition the subject-matter of the second count.
In their defence the appellants Ioannou and Apostolou made brief statements from the dock while the appellant Afxentiou testified under oath. Briefly, the case made by all three accused was that they had only been a very short time in the hide-out, had not entered the larger room and were wholly unaware that it contained firearms and ammunition. The Court of trial was satisfied that there was no truth in the stories told by the appellants and found oil the evidence that they were knowingly in joint possession of the firearms and ammunition without lawful authority or excuse.
In the first place it is submitted that the appellants had not been properly committed for trial and the committal being bad the proceedings were a nullity. The committal order was made on the 5th February, 1957, by a Justice of the Special Court acting under Section 9 (2), as amended, of the Special Court Law, 1955. The appellants were committed for trial on the 25th February, 1957, by the Special Court composed of a Judge empowered to try specified offences under section 8 of the same Law. Section 9 (2), as amended, reads as follows:
"A Justice of the Special Court shall have all the powers (including the power to hold preliminary inquiries into the commission of specified offences) conferred on a Court or Judge under the provisions of the Criminal Procedure Law, or of any Law amending or substituted for the same, and shall for all the purposes of the said Law, or of any Law amending or substituted for the same, be deemed to be a Judge".
Section 8 of the Special Court Law, 1955, provides:
"8 (1) A Judge of the Special Court shall have jurisdiction to try all specified offences committed within the Colony whether before or after the coming into operation of this Law.
(2) A Special Court composed of a Judge exercising jurisdiction under this section shall, subject to the provisions of this Law, have all the powers and privileges of an Assize Court constituted under the Courts of Justice Law, 1953, or under any Law amending or substituted for the same, and shall for all the purposes of the said Law or of any Law in force for the time being be deemed to be an Assize Court".
The argument is that the Special Court composed of a Judge is to be deemed an Assize Court for all the purposes of the Criminal Procedure Law, Cap. 14, and therefore the committing Justice was obliged to act in accordance with section 91 (i) of that Law which requires that where a Judge (of the District Court) holds a preliminary inquiry the provisions shall apply that-
"if the accused is not discharged, the Judge shall commit him for trial by the Assize Court next sitting in the district in which the offence is alleged to have been committed, or with the consent of the accused and the Attorney-General to an Assize Court then in session in such district and, subject to the provisions of sub-section (2) of section 154 of this Law, either admit him to bail or commit him to prison for safe keeping".
It is submitted that the Special Court Justice was in the same position as a District Court Judge when holding the preliminary inquiry and that he committed the appellants for trial to an Assize Court (or rather a Special Court deemed to be an Assize Court under section 8 quoted above of the Special Court Law, 1955) then in session in the district without the consent of the appellants and the Attorney-General. The committal was, therefore, bad since, in the absence of such express consent, there could only be a valid committal for trial to the next sitting in the district in which the offence is alleged to have been committed. If this contention is sound then the surprising result arises that by withholding his consent under section 91 (i) of Cap. 14 an accused could not be committed for trial at all under present arrangements because there is no "next sitting" of a Special Court in the sense in which those words apply to an Assize Court. The Special Court, which was created as a result of the abnormal exigencies of the times, sits at such places and times as the Chief Justice may from time to time direct. This provision as to the places and times at which the Special Court shall hold its sittings is contained in section 12 (1) of the Special Court Law, 1955. The Special Court composed of a Judge has been sitting from day to day at Nicosia since November, 1955, according as there is work to be done, and the presumption is that the former Chief Justice has regulated such sittings in accordance with the obligation placed upon him by law. It is far-fetched in the nature of things to suggest, and indeed it has not been directly suggested, that the Special Court somehow arranged as to the places and times of its own sittings without any direction from the head of the judiciary charged with the responsibility for these matters under the law.
The Assize Court, on the other hand, under section 65 (2) of the Courts of Justice Law, 1953, must hold its sittings within the principal town of each of the several districts of the Colony; and under section 68 (2) of the same Law the Chief Justice may only direct as to the times at which the Courts shall be held. As is commonly known, such sessions are ordinarily held in the towns of the respective Districts three times a year. The relevance of the provisions under review of section 91 .(i) of Cap. 14 thus becomes apparent.
From the foregoing it is surely manifest that a Special Court composed of a Judge cannot by virtue of section 8 of the Special Court Law, 1955, be or be deemed to be an Assize Court for the purposes of that part of section 91 (i) relied upon in support of the argument put forward on behalf of the appellants. To hold otherwise would mean that, as has already been pointed out, an accused by withholding his consent to committal for trial to the Special Court in continuous session could not be committed at all to be tried for a specified offence for the reason that there is no "next sitting in the district" of a Special Court as is contemplated by section 91 (i) of Cap. 14 in relation to an Assize Court. Clearly the Legislature intended no such absurdity. In the opinion of this Court, and as is submitted for the Crown, the Legislature has given effect to its intention to permit the committal of an accused for trial by a Special Justice to a Special Court composed of a Judge whatever may be the times of sitting of such Court. Section 17 of the Special Court Law, 1955, reads as follows:
"Subject to the provisions of this Law, the provisions of the Courts of Justice Law, 1953, relating to courts of original criminal jurisdiction, and the provisions of any other Law in force for the time being relating to criminal trials shall, in so far as they are not inconsistent with the provisions of this Law, apply mutatis mutandis, to trials by the Special Court as they apply to trials by any other court of original criminal jurisdiction".
In our view there is substance in the submission advanced by Mr. Grey that the particular provisions of section 91 (i) of Cap. 14 which are relied upon by the appellants are inconsistent with the Special Court Law, 1955, and notably with section 12 and directions authorised thereunder which have the force of law. This ground of appeal must therefore fail; we hold that the appellants were properly committed for trial to the Court below.
It is also raised as a ground of appeal that the defence was seriously prejudiced through disallowance by the learned trial Judge of a question in cross-examination of the prosecution witness Sergeant Leach directed to ascertain whether any names were found on documents discovered in the hide-out or any EOKA code names referring to persons other than the accused. We think that the question might properly have been allowed but we are wholly satisfied that the failure to allow the question did not prejudice the appellants as is contended and certainly did not occasion any miscarriage of justice. The ground of appeal set forth at paragraph 3 of the notice of appeal on points of law was not pressed; it seems evident anyway that the line of cross-examination referred to went to credit having regard to the defence being raised by the second accused. As to the grounds contained in paragraphs 4 and 5 of the notice we are content to say that we find no merit whatsoever in them.
Turning to the appeal on the facts, the learned Judge disbelieved the story put forward by the appellants and this Court is quite unable to say that he was wrong in his approach to the defence story or in his assessment of the value of the statements of accused 1 and 3 and the evidence of accused 2. Having satisfied himself that there was no substance whatever in the account given by the appellants the Judge arrived at the inference of fact that they were in unlawful possession of the firearms and ammunition. We fail to see how in all the circumstances of the case he could reasonably have come to any other conclusion and there is nothing amounting to a misdirection by the learned Judge.
Appeal dismissed.