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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1961) 1 CLR 44
1961 March 7
[O' BRIAIN, P., ZEKIA, VASSILIADES and JOSEPHIDES, JJ.]
MICHAEL CONSTANTINOU TYMVIOS AND OTHERS,
Appellants,
v.
THE POLICE
Respondents.
(Criminal Appeals No. 2312 - 2314
Consolidated)
Criminal Procedure-Trial in criminal cases-Desirability of keeping meticulous record-Especially when accused is illiterate and unrepresented by counsel-Directions in Paliomeshitis v. Rossides 22 C.L.R. 153, P. 154-Failure to observe them may involve the quashing of the conviction and a fresh trial-Evidence by affidavit or otherwise required in most cases to establish disregard of those directions.
Criminal Procedure-Appeal-Grounds of appeal-Points not set out therein-In most cases will not be allowed to be raised.
In the instant cases there had been a failure on the part of the trial judge to comply with the directions of the Supreme Court in the case of Paliomeshitis v. Rossides (1957) 22 C.L.R. 153, at p. 154, last paragraph. The point, however, was not properly raised in the grounds of appeal. Those directions were to the effect that:
(a) Magistrates should keep a meticulous record of the proceedings;
(b) Particularly, where an accused person is unrepresented by an advocate, the actual word or words used by the accused in pleading guilty to a charge should be recorded;
(c) There should be a note that the charge has been read over to the accused and in the instance of an undefended accused being an illiterate or a person unlikely to understand the elements of the offence, a note that the ingredients constituting the offence have been explained to him; and
(d) Where the Court is satisfied that an accused understands the nature of the plea and the Court accepts it as amounting to a plea of guilty, it is desirable that such should be clearly indicated upon the record.
Held: (1) This Court approves entirely what is stated in the case of Paliomeshitis v. Rossides (ubi supra). Although those observations are in the nature of directions rather than statements of strict law, still the trial courts generally should be aware of the fact that this Court thinks that these directions should be observed in the interests of justice and that in many cases failure to observe the requirements mentioned by the Chief Justice in that passage may involve the quashing of the conviction and possibly a new trial.
(2) Having regard to the admitted failure of the trial court to comply with these directions and to the further factor that the advocate defending the accused (appellants) was not present at the trial due to a failure to notify him of the adjourned sitting as directed by the Judge, the proper course is to set aside the conviction and direct a fresh trial.
Appeal allowed. Convictions se
aside - Fresh trial ordered.
Cases referred to:
Paliomeshitis v. Rossides (1957) 22 C.L.R. 153.
Per curiam: (1) Grounds set out in a notice of appeal are intended to give notice to the opposite party and to this Court of points of law and issues of fact that will be relied upon at the hearing of the appeal and if a matter is not raised in the grounds of appeal this Court, in most cases, will not allow a point to be raised.
(2) In most cases this Court will expect some evidence from an accused person who is relying on points such as relied upon in this case, by affidavit or otherwise, establishing affirmatively to the satisfaction of this Court, the matters mentioned by the learned Chief Justice in the Paliomeshitis case (ubi supra).
Appeal against conviction
Appellant No. 1 and appellants Nos. 2 and 3 were convicted on the 28.11.60 at the District Court of Nicosia (Cr. Case No. 13801/60) of the offences of keeping a gaming house contrary to sections 3(1) (a) and 15 of the Betting Houses, Gaming Houses and Gambling Prevention Law Cap.151, and Gambling contrary to sections 4, 12, 14 and 15 of the same law and s.12 of the Juvenile Offenders Law, Cap.157, respectively, and were sentenced by Georghiou D.J. as follows:
Appellant No. 1 was ordered to pay a fine of £1 or 5 days imprisonment and his slot machines to be forfeited.
Appellants No. 2 & 3 were discharged conditionally that they will not commit any offence within six months and appellant No.3 was further ordered to submit to supervision for six months by the Probation Officer.
A. C. Indianos for the appellants.
E. Munir for the respondent.
The facts sufficiently appear in the judgment of the Court read by :-
O' BRIAIN, P. : In this case the three accused who appear to-day by Mr. Indianos appeal against several convictions for alleged offences contrary to the Betting Houses, Gaming Houses and Gambling Prevention Law. Accused No. 1 appeals against a conviction for keeping a gaming house at Strovolos and accused No. 2 and No.3 against convictions for gambling in that gaming house at the time charged.
Mr. Indianos has raised a number of points, some of which do not appear to the Court to have been properly set out as grounds of appeal. The Court thinks it proper to emphasize, in this case, that grounds set out in a notice of appeal are intended to give notice to the opposite party and to this Court of the points of Law and issues of fact that will be relied upon at the hearing of the appeal and if a matter is not raised in the grounds of appeal this Court, in most cases, will not allow a point to be raised. Mr. Indianos has raised the point that there has been here a failure on the part of the learned District Judge to comply with the observations and directions of the former Supreme Court as set out in the case of Paliomeshitis v. Rossides, reported in the Cyprus Law Reports Vol. XXII, p.154, last paragraph. This Court takes this opportunity of stating that it approves entirely what is stated there by the learned Chief Justice. It is true those observations are in the nature of directions rather than statements of strict law, but we are of opinion that trial courts generally should be aware of the fact that this Court thinks that these directions should be observed in the interests of justice. We do not understand that passage as indicating that, in every case in which there has been failure strictly to comply with these directions, the conviction must be set aside and quashed, but it should be appreciated that in many cases failure to observe the requirements mentioned by the learned Chief Justice may involve the quashing of the conviction and possibly a new trial.
We have come to the conclusion, having heard Mr. Indianos and Mr. Munir, that this is such a case. Having regard to the admitted failure of the Court to comply with these directions and to the further factor that the advocate who appeared in the Court below for one of the accused was not there on the day on which the Court proceeded to deal with the case finally due to a failure to notify him of the adjourned sitting as directed by the Judge, we think that the proper course is to set aside this conviction and direct a fresh trial.
We wish to say, however, that in most cases this Court will expect some evidence from an accused person who is relying on points such as relied upon in this case, by affidavit or otherwise, establishing affirmatively to the satisfaction of this Court, The matters mentioned by the learned Chief Justice.
Appeal allowed. Conviction set
aside in each case and a fresh trial
before the District Court of Nicosia
ordered.