|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1987) 2 CLR 120
1987 August 19
[TRIANTAFYLLIDES, P., SAVVIDES, LORIS, JJ.]
YIANNAKIS P. ELLINAS,
Appellant,
v.
THE POLICE,
Respondents.
(Criminal Appeal No. 4896).
Criminal procedure — Remand in custody, application for— Task of trial Judge — Powers of Supreme Court to intervene with an order of remand — Non disclosure of documents taken into consideration by trial Judge — Constitutes a violation of the rule of natural justice «audiatur et alteram partem» — Non production of such documents — Hinders judicial scrutiny by this Court.
The appellant was remanded in police custody for eight days pending police investigations into the offences of (1) Conspiracy to kill. (2) Premeditated murder (triple). It is apparent from the record that the trial Judge dealing with the remand application read a set of documents presented to him by counsel appearing for the Police and that these documents (i) were not disclosed to the defence (as a result of the Judge's ruling on the objections of the Police to disclosure), and (ii) were not properly produced.
Held, allowing the appeal: (1) In dealing with a remand application the trial Judge must evaluate the material before him and reach his decision guided by the principles relevant to his discretion. He has to apply the relevant statutory provision which is s. 24 of the Criminal Procedure Law, Cap. 155 which «has to be read subject to the relevant constitutional provisions, which are paragraphs 1,2 (c) and 6 of Article 11 of our Constitution» (vide Tsirides v. The Police (1973) 3 C.L.R. 204 at p. 206).
(2) The task of this Court is confined to determining whether the Judge exercised his discretion judicially. «This in turn entitles this Court to examine the principles that guided the Judge in the exercise of his discretion and matters taken into consideration....»
(3) In this case the rule of natural justice expressed by the maxim «audiatur et alteram partem» was flagrantly violated, by reason of the non-disclosure of the said documents to the defence.
(4) Moreover, the non-production of such documents hinders judicial scrutiny by this Court.
Appeal allowed.
Cases referred to:
Tsirides v. The Police (1973) 3 C.L.R. 204;
Hasip v. The Police, 1964 C.L.R. 48;
Papacleovoulou & Another v. The Police (1974) 2 C.L.R. 55;
Stamatis & Another v. The Police (1983) 2 C.L.R. 107;
Economides & Another v. The Police (1983) 2 C.L.R. 301.
Appeal against remand order.
Appeal by Yiannakis P. Ellinas against the remand order of the District Court of Limassol (Eleftheriou, D.J.) made on the 14th August, 1987 whereby appellant was remanded in Police custody for eight days pending Police investigation into the offences of conspiracy to kill and premeditated murder.
G. Cacoyiannis with Chr. Triantafyllides and P. Mouaimis, for the appellant.
Gl. HjiPetrou, for the respondents.
TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by Loris J.
LORIS J.: The present appeal is directed against the remand Order of the District Court of Limassol, dated 14.8.87, whereby the appellant was remanded in police custody for eight days pending police investigations into the offences of: (i) Conspiracy to kill (II) Premeditated murder (triple).
The appellant was initially arrested in connection with the aforesaid offences on 10.7.87 and he was remanded in Police custody wherefrom he was released on 16.7.87. He was arrested again on 20.7.87 and he was remanded in police custody for another two consecutive periods of 8 days each.
The remand Order of 14.8.87, which is being impugned by means of the present appeal, is the fourth remand Order against the appellant.
The decision for the remand of a suspect in police custody for purposes of investigation, as well as its renewal, rests with the Judge dealing with the remand application, who must evaluate the material before him and reach his decision guided by the principles relevant to his discretion. He has to apply the relevant statutory provision which is s. 24 of the Criminal Procedure Law Cap. 155 which «has to be read subject to the relevant constitutional provisions, which are paragraphs 1, 2(c) and 6 of Article 11 of our Constitution» (vide Tsirides v. The Police (1973) 3 C.L.R. 204 at p. 206), and applied in the light of the authoritative pronouncements on appeal in a number of cases on this topic: (vide inter alios: Vedat Ahmet Hasip v. The Police, 1964 C.L.R. 48, Tsirides v. The Police (Supra), Papacleovoulou & Another v. The Police (1974) 2 C.L.R. 55, Stamataris & Another v. The Police (1983) 2 C.L.R. 107 Economides & Another v. The Police (1983) 2 C.L.R. 301).
The task of this Court is summarised in Stamataris' case (supra) at p. Ill as follows:
«An appeal against a remand order is not by way of rehearing. Our jurisdiction is confined to determining whether the Judge exercised his discretion judicially. (See, Yiannakis Papacleovoulou and Another v. The Police (1974) 3 C.L.R. 55). This, in turn entitles the Supreme Court to examine the principles that guided the Judge in the exercise of his discretion and matters taken into consideration..»
The main complaint of the appellant, in the appeal under consideration, is that the learned trial Judge dealing with the remand application took into consideration material i.e. a set of documents in the possession of the police which were never disclosed to the defence inspite of the fact that same were eagerly sought by counsel appearing for the suspect at the hearing, who went as far as eliminating his request to their perusal by him giving at the same time a sole undertaking that the contents hereof would not be disclosed to his client.
The learned trial judge without admitting the documents in question confined himself in reading a set of these documents ruling on the objection of the police against the availability of same to the defence even for inspection purposes.
Leading counsel for the appellant forcefully submitted that the non disclosure of the documents aforesaid, to the defence rendered the task of opposing the police application for remand impossible as the defence could not check either-the reliability of the source from which the documents in question were emanating or whether in fact the contents of such documents could support a reasonable suspicion against the suspect.
It is apparent from the record before us that the learned Judge dealing with the remand application (a) Read a set of documents presented to him by counsel appearing for the Police and that these documents (i) were not disclosed to the defence (as a result of the Judge's ruling on the objections of the Police for non disclosure) (ii) were not properly produced.
(b) Took into consideration the contents of the aforesaid set of documents in reaching his decision to grant the remand Order under appeal; this is clearly stated at page seventeen of the record.
We hold the view that in the circumstances the non disclosure of the set of documents aforesaid to the defence violated flagrantly the rule of natural justice expressed by the maxim «audiatur et alteram partem»; the defence not being aware of the nature and contents of the documents, was prevented from attacking their reliability and more so their contents. On the other hand the non-production of the set of documents in question resulted in the absence of such set of documents from the record before us. Such an absence hinders our judicial scrutiny absolutely, as we do not know what it is all about. It is true that a Court entertaining an application for remand need not examine the probative value of the evidence but it is bound to examine the reliability of the source from which such evidence emanates (vide Economides & Another v. The Police (supra); and as already stated above it is within our province to examine the principles that guided the Judge in the exercise of his discretion and matters taken into consideration. And it is obvious that in the absence of any record we cannot exercise any sort of judicial scrutiny on the remand order in question in view of the fact that the Judge who gave the remand Order took into consideration the aforesaid set of documents, which are not before us, in reaching at the sub-judice decision.
For the above reasons this appeal is allowed and the remand order appealed from is hereby set aside.
Appeal allowed.