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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 3 CLR 966
1983 November 30
[HADJIANASTASSIOU, A. LOIZOU, MALACHTOS, STVYLIANIDESV AND
PIKIS JJ.]
ANDREAS CONSTANTENOU,
Appellant-Appellant.
v.
THE POLICE,
Respondents.
(Civil Appeal No. 6546).
Certiorari-Leave to apply for-Principles applicable-Where the right of appeal is available power of the Court to grant leave should be sparingly exercised particularly in criminal cases-Trial of criminal case-Ruling refusing to reserve a question of law for the opinion of the Supreme court under section 148(1) of the Criminal Procedure Law, Cap. 155-No prima facie case made justifying the granting of the leave applied for especially as it is not the function of this court to use a prerogative order, such as an order of certiorari in order to dictate to a trial Court how to exercise its discretionary powers under s. 148(1) of Cap.155-Where proceedings regular upon their face and inferior Court had Jurisdiction superior Court will not grant order of certiorari on ground that inferior court had misconceived a point of law.
The appellant made an application for leave to apply for an order of certiorari quashing a ruling given by the District Court of Nicosia in a Criminal case in which the appellant was the accused, whereby the Court refused to reserve for the opinion of the Supreme Court, under section 148(1) of the Criminal Procedure Law, Cap. 155 a question of law regarding the admissibility of certain evidence. The trial Judge refused to give the leave applied for having not been satisfied that this was a case in which it could be found that a prima facie case has been made out justifying the granting of the leave applied for, especially as it was not the function of the Court to use a prerogative order, such as an order of certiorari in order to dictate to a trial Court how to exercise its discretionary powers under section 148(1) of Cap. 155. Hence this appeal.
Held, that, considering the availability of a right to appeal and the other procedural methods open to litigants to remedy situations and errors, the powers of this Court to grant leave to apply for an order of certiorari should be sparingly exercised, particularly so in criminal cases where there should be neither unnecessary interruption nor undue delay in the administration of criminal justice; that a similar approach applied equally to the exercise of a Judge's discretion under s. 148 of Cap. 155; that considering the facts of this case, there is no reason for the Court to interfere with the discretion of the trial Judge in refusing to grant leave for the filing of an application for an order for certiorari the more so that where the proceedings are regular upon their face and the inferior tribunal had jurisdiction the superior Court will not grant the order of certiorari on the ground that the inferior tribunal had misconceived a point of law; accordingly the appeal must fail.
Appeal dismissed.
Appeal.
Appeal by applicant against the judgment of the President the Supreme Court of Cyprus (Triantafyllides, P.) dated the 16th April, 1983 (Appl. No. 1/83) whereby his application for leave to apply for an order of certiorari was dismissed.
A. Panayiotou, for the appellant.
Kl. Theodoulou, Counsel of the Republic, for the respondents.
HADJIANASTASSIOU, J. The judgment of the Court will be delivered by Mr. Justice A. Loizou.
A. LOIZOU J.- In the course of the summary trial of the appellant on a charge of having committed public mischief, the defence sought the production of certain documents which, in their opinion, would be relevant, legally admissible and helpful to their case.
Upon objection made to their admissibility by the prosecution the trial Judge gave the following brief ruling:
"The objection is upheld as the exhibits referred to have no relevancy to the charge faced today by the accused. Consequently their admission is not accepted".
Counsel for the accused-now the appellant-applied to the Judge that he should reserve for the opinion of the Supreme Court under s.148(1) of the Criminal Procedure Law, Cap. 155, a question of Law regarding the admissibility of this piece of evidence which he had just refused to receive in evidence by his aforesaid ruling. This application was refused.
There followed an application to this Court seeking leave to apply for an order of certiorari quashing the ruling given by the trial Judge on the 21st December, 1982, in respect of reserving the question of Law under s.148(1) of Cap. 155. The application was heard in the first instance by the President of this Court who refused to give leave and against which judgment this appeal was made to the Full Bench of the Court.
The legal aspect of the case as well as the brief facts appear in the judgment of the learned President who, after summing up the legal position by reference to decided cases, refused the application by saying the following:-
"I have, therefore, not been satisfied that this is a case in which it can be found by me that a prima facie case has been made out justifying the granting of the leave applied for by the applicant; especially, as it is not the function of this Court to use a prerogative order, such as an order of certiorari, in order to dictate to a trial Court how to exercise its discretionary owers under section 148(1) of Cap. 155 (and as regards the proper application of the said section 148(1) see, inter alia, The Republic v. Kalli (No. 1), 1961 C.L.R. 266; Kaouras v The Police (1973)2 C.L.R. 112; In re Charalambous (1974) 2 C.L.R. 37; The Republic v. Sampon (1977) 2 C.L.R. 1 and Police v. Ekdotiki Eteria 'Inomeni Dimosiographi Dias Ltd.' (1982) 2 C.L.R. 63").
Counsel for the appellants has argued that in the interests of justice this was a proper case that the question of Law applied for under s. 148 of Cap. 155 should have been reserved and therefore it was wrong in law for the learned President to have refused the leave for the issue of an order of certiorari applied for.
As pointed out in Halsbury's Laws of England, Third Edition, Vol. 11, page 53, para. 109:
"In modern practice the most important aspect of the three orders s their use as a means of controlling inferior Courts and other persons and bodies of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. The importance of this aspect has been greatly increased by the tendency of modem legislation to submit the determination of such questions to tribunals other than the ordinary Courts of Law, and to Ministers and other official persons and bodies. Where (as is frequently the case) no right of appeal to the Courts exists, the three orders here under consideration form the principal means by which the determinations of these tribunals and other persons and bodies can be brought before the Courts. The degree of control which can be exercised is limited provided that the tribunal keeps within its jurisdiction and obeys the rules of natural justice, and refrains from setting out in its record the reasons for its decision, the Court cannot interfere".
The principles upon which a prerogative writ and leave in that respect are issued, are well settled on the basis of English authorities and we need not refer to them here but we would like to stress, considering the availability of a right to appeal and the other procedural methods open to litigants to remedy situations and errors, these powers of this Court should be sparingly exercised, particularly so in criminal cases where there should be neither unnecessary interruption nor undue delay in the administration of criminal justice.
We feel that similar approach applies equally to the exercise of a Judge's discretion under s.148 of Cap. 155. It is also unnecessary to set out the well known principles applicable to the extent that an Appellate Court will interfere with the exercise of a trial Court's discretion. But considering the facts of this case, we find that there is no reason for us to interfere with the discretion of the learned President in refusing to grant leave for the filing of an application for an order for certiorari, who in his turn and for the reasons given in the judgment earlier on quoted, he had refused to interfere with the exercise of the discretion of the trial Judge; more so when one bears in mind, as pointed out in Halsbury's Laws of England, 3rd Edition, Vol. 11, p. 62, para. 119, by reference to the decided cases that:
"Where the proceedings are regular upon their face and the inferior tribunal had jurisdiction, the superior Court will not grant the order of certiorari on the ground that the inferior tribunal had misconceived a point of law. When the inferior tribunal has jurisdiction to decide a matter, it cannot (merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence, or misdirects itself as to the weight of the evidence, or convicts without evidence) be deemed to exceed or abuse its jurisdiction. If, however, an administrative body comes to a decision which no reasonable body could ever have come to, it will be deemed to have exceeded its jurisdiction, and the Court can interfere".
It is, therefore, clear that the existence of a right of appeal is a factor relevant to the exercise of the discretion of the trial judge under section 148 of Law Cap. 155. A discretion that should be exercised judicially bearing in mind, inter alia, as already pointed out, the need to administer criminal justice without undue interruptions and delays.
Before concluding, however, we should make it clear that nothing said in this judgment should in any way be taken as pronouncing on the merits of the ruling of the trial Court as against which the application to reserve a question of Law under s.148 was made and upon its refusal to do so these proceedings were originated.
For all the above reasons this appeal is dismissed with no order as to costs.
Appeal dismissed with no order
as to costs.