IN RE ELLINAS (1989) 1 CLR 106

Prerogative Orders - Certiorari/Prohibition - Leave to apply for - Principles applicable - The concept of a «prima facie case» and of «sufficiently arguable cases».

Constitutional Law - Criminal cases - Right to a hearing within reasonable time - Constitution. Art. 30:2 - Applicant arrested in 1984 in connection with an investigation of alleged thefts charged for the first time in 1989 and was committed for trial by Assizes - Filing of information followed - Leave to apply for certiorari and prohibition granted.

European Convention for the Protection of Human Rights - Criminal cases - Right to hearing within reasonable time - In the circumstances of the case, accused, who complained of unreasonable delay in prosecuting him, was granted leave to apply for certiorari and prohibition.

The facts of this case need not be summarized, as they sufficiently appear in the hereinabove headnotes.

Leave to apply for certiorari

and prohibition granted.

Cases referred to:

Bell v. Director of Public Prosecutions of Jamaica and Another 20 [1985] 2 All ER. 585;

In re Maroulleti (1970 1 C.L.R. 75;

In re Kakos (1985)1 C.L.R. 250;

In the Argyrides (1987) 1 C.L.R. 23;

Ellinas v. Republic (1989) 1 C.L.R 17;

Application.

Application for leave to apply for an order of certiorari to remove into the Supreme Court for the purpose of quashing the committal of the applicant by the District Court of Limassol for trial before the Assize Court in Criminal Case No. 32/89.

G. Cacoyannis, for the applicant.

BOYADJIS J. gave the following judgment. This is an application filed on behalf of Yiannakis P. Ellinas, of Limassol, for leave to issue and serve a motion for orders of certiorari and prohibition. The object of the order of certiorari is to remove into the Supreme Court for the purpose of its being quashed the committal of the applicant by the District Court of Limassol for trial before the Assize Court of Limassol for the offences charged in the charge sheet dated 3rd January, 1984, made by the said District Court on 13th January, 1989 in Criminal Case No. 32/89. The object of the order of prohibition is to prohibit the Assize Court of Limassol from proceeding to arraign and/or to try the applicant in Criminal Case No.32/89 on the basis of the said committal made by the District Court of Limassol on 13th January, 1989, and/or on the information dated 19th January, 1989, filed by the Attorney-General on the basis and/or in consequence of the said committal.

The applicant further prays that all proceedings in the said 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 all necessary and consequential directions be given.

The main ground upon which the said reliefs are sought is the contention of applicant's learned counsel that there has been such an inordinate delay in prosecuting the applicant for the offences set out in the information filed by the Attorney-General in Criminal Case No. 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. Art. 6.1 of the European Convention on Human Rights ratified by Law 39 of'1962 have been infringed. Therefore, counsel alleged, the committal of the applicant for trial before the Assize Court of Limassol in Criminal Case No. 32/89 is null and void and of no effect whatsoever, its invalidity being an error of law apparent on the face of the record and/or such committal was made in excess of the Court's jurisdiction or power. Counsel added that the prosecution of 'the applicant through Criminal Case No. 32/89 amounts, in the circumstances, to an abuse of the process of the Court.

The facts upon which the application is based are set out in the affidavit sworn by the applicant's wife, filed in support of the application, verifying, inter alia, the brief historical factual background set out .in the application The story therein set out is briefly this:

Michael brothers filed their complaint with the Police on 8th December, 1984 and theapplicant was arrested on 19th December, 1984, on the strength of .a judicial warrant. On the same day a large volume of books, files, accounts and documents belonging to Lightning Transport and/or the applicant were seized by the Police and are kept by them till to-day.

The Police did nothing to start an accounts investigation into the affairs of Lightning Transport and/or the applicant.

By a letter .dated 30th March, 1985, eleven bus owners, including the Michael brothers, instructed Petrides and Modinos a firm of accountants, to carry out a general investigation into the affairs of Lightning Transport purportedly pursuant to section 30 of the Partnership Law, Cap. 116. These accountants carried out their investigation in the Police Station where the books, files, accounts and documents which the Police had seized on 19th December, 1984, were kept. The investigation covered the period between June 1973 and June 1983. The investigation commenced in May 1985 and ended on 2nd.July, 1986, without the Police Sever urging a speeding up thereof.

On 4th July, 1986, the applicant was formally charged that between 1.3.1974 and 18.6.1983 he stole the sum of £52,343.-

Four criminal cases were filed against the accused subsequently to the aforesaid formal charge as follows: Case No. 22444/87 on 18.8.1987; Cases No.22445/87 and No. 22446/87 on 19.8.1987; and Case No. 2382/87on 11.9.1987. The applicant was thereby charge with 115 counts of theft which he allegedly committed during the period 1981 - 1983. On 5.2.1988 the District Court of Limassol committed the applicant for trial before the Assize Court next sitting in Limassol in each one of the said four. criminal cases Informations were filed only in Cases. No 22446/87 and No. 23802/87.

On 26.8.1988 the Assize Court of Limassol found the applicant guilty in Case No 22446/87 and sentenced him to 18 months' imprisonment Applicant's appeal against his conviction is still pending before the Supreme Court.

Case No. 23802/87 stands fixed for hearing before the Limassol Assize Courton20.2.1989.

On 3.1.1989 a fifth criminal case was filed against the applicant with the District Court of Limassol. It is Case No. 32/89 and contains 38 counts all charging the applicant with thefts of various amounts belonging to Lightning Transport company, allegedly committed between March 1980 and January 1984.On 13.1.1989 the applicant was committed for trial by the Limassol Winter Assize.

Pursuant to the aforesaid committal, the Attorney-General filed on 19.1.1989 an Information in the said Criminal CaseNo.32/89 charging the applicant with stealing various amounts alleged to be the property of Lightning Transport, during the period between 8.3.1980 and 7.9.1983. The case how stands fixed before the Limassol Assizes on 20.2.1989 and the Court shall proceed to hear the case unless it is prohibited by the Supreme Court from doing so through the Issue of an order of prohibition.

Learned counsel for the applicant submitted that in the determination of any criminal charge against him, the applicant has the right safeguarded by Art 30.2 of the Constitution and also by Art 6.1 of the European Convention on Human Right to a fair and public hearing within a reasonable time that; in the circumstances of this case, the period to be taken into 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 reasonables of the length of proceedings coming within the scope of Art 6.1 of the Convention, laid down in a number of decisions reported in the Digest of Strasbourg Case- Law 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 constitutional and legal rights having been infringed by the filing of 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. 35 of the Constitution to ensure that the applicant's aforesaid rights are protected from violation by issuing the prerogative orders applied for.

This is the first case where the reasonableness of the length of criminal proceedings coming within the scope of Art. 30.2 of the Constitution and Art. 6.1 of the European Convention falls to be considered by this Court. The matter has been considered by the Privy Council in the context of section 20(1) of the Constitution of Jamaica, safeguarding the right to a «fair hearing within a reasonable times», in the case of Bell v Director of Public Prosecutions of Jamaica and Another [1985] 2 All E.R. 585, where it was held that:

«(1) Regardless of the position at common law, the express words of s.20(1) of the Constitution of Jamaica plainly sufficed to confer on an accused the right to a fair hearing 'within a reasonable time'. Furthermore the accused did not have to show any specific prejudice before being entitled to have charges against him dismissed because of unreasonable delay in bringing him to trial. In determining whether the accused had been deprived of a fair trial by reason of unreasonable delay factors which were relevant were the length of thedelay, the reasons given by the prosecution to justify the delay, the efforts made by the accused to assert his rights and the prejudice to the accused. The assessment of those factors would, necessarily vary from jurisdiction to jurisdiction and case to case. In particular, the prevailing system of legal administration and economic, social and cultural conditions in Jamaica had to be taken into account; Barker v. Wingo (1972) 407 US adopted.

(2) On the facts, the operative period of delay began on 7th March, 1979, when the Court of Appeal ordered a retrial Although the delay thereafter of 32 months in the 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 his right to a fair hearing within a reasonable time. It followed that the appellant was entitled to a declaration to that effect and that his appeal would be allowed»

At the present stage of the proceedings, that of obtaining leave on an ex parte application for the issue of an order of certiorari and prohibition, the Court need not go into the matter thoroughly because this is not the stage where the applicant's complaint and contentions are examined and determined conclusively.

The remedy is discretionary and the principles applicable to the exercise of the Court's jurisdiction are the same with those applied in England. The question which falls for determination at present is whether the applicant has succeeded in making out a prima facie case sufficiently to justify the granting of leave to him to move this Court in due time to issue the prerogative orders applied for: In re Loucia Maroulleti (1970) 1 C.L.R. 75. If an arguable issue arises out of the applicant's submissions which merits an answer, leave should be granted. There are numerous authorities dealing with the concepts of «a prima facie case» and «a sufficiently arguable case». It seems that the two concepts are identical, both demanding the existence on first view of a convincing enough case. See for examble In re Kakos (1985) 1 C.L.R. 250, In re Argyrides (1987) 1 C.L.R. 23, and in Ellinas v. Republic (1989) 1 C.L.R. 17.

Having considered the submission of counsel, without at this stage deciding the validity thereof or whether the infringement of the applicant's constitutional or legal rights complained of has taken place or not, I am of opinion that the applicant has succeeded in making out an arguable case deserving an answer and a more thorough consideration after leave is granted as applied for.

Leave is, therefore, granted to apply for certiorari and prohibition. The applicant to file his application within 8 days from to-day. In the meantime the proceedings before the Assize Court of Limassol in criminal Case No. 32/89 against the applicant shall stay. The stay shall continue to operate until further order if, pursuant to the present leave, the applicant files his application within the time prescribed hereinabove.

Leave granted.

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