[*1] 1985 June 17
(MILTIADOU, D.J.)
IN THE DISTRICT COURT OF PAPHOS
Divisional Police Commander, Paphos
Chrysanthos Kyriacou Photiou,
Accused.
(Case No. 6995/84).
Criminal Procedure - No case to answer - Principles applicable - The Criminal Procedure Law, Cap. 155, section 74 (1) (b).
Judicial notice - Regulations or orders having a legislative character, so as to form part of the enabling law need not be proved by evidence - otherwise, they must be proved by any of the methods of the Law of Evidence, i.e. production of copy of the Government Gazette or a certified copy thereof - Charge for contravening the Supplies and Services (Transitional Powers) (Continuation) Law, Cap. 175 A, Regulatory Administrative Order 337/83 and Regs. 61 and 94 of the Defence Regulations - The issuance of an order under section 3 (1) and of an order under Reg. 61 is a necessary prerequisite of the offence charged - Such orders are of an executive character - It follows that the prosecution must prove their issuance.
P.S. Loizides, for the Prosecution.
E. Korakides, for the Accused.
The following judgment was delivered by:
MILTIADOU, D.J.:- The accused is charged that on the 16.8.84 at Paphos, being the person in charge of Photios & Christofi Co. Ltd., did sell to Solomis Paraschos, of Polis Chrysochou, 24 okes shoulder of frozen lamb at [*2] the price of C£1 .70 cent instead of C£1.60 cent, contrary to The Supplies and Services (Transitional Powers) (Continuation) Law, Cap. 175A, Regulating Administrative Order 337/83 and regulations 61 and 94 of the Defence Regulations 1940.
It is the version of the Prosecution that the accused on the 16.8.1984 being a wholeseller did sell to one Solomis Paraschos, of Polis, 24 okes, shoulder, of frozen lamb at the price of C£1.70 cent instead of C£1 60 cent, which price is that fixed wholesale price by the Regulating Administrative Order 337/83 issued by the Minister of Commerce and Industry.
To prove the above charge the Prosecution called three witnesses namely: -
P.W.I, Klitos Apostolides, an employee of the Ministry of Commerce and Industry, attached to the Consumers Protection and Price Control Department of the District Office at Paphos, who said that on the 13.9.1984 Solomis Paraschos made a complaint to him against the accused and delivered to him Invoice No. 000655 issued by the accused, put in Court, Exh. 1. The above complaint was made to him, when he visited Polis Co-operative Stores where the said Solomis is a salesman, for routine checking of retail controlled prices. He thereupon, made inquiries and visited accused’s shops at Ktima [*3] who is a wholeseller of frozen meat.
P.W.2, Theodoros Georghiou, of Polis, Secretary of the above-mentioned Co-Operative Stores, who said, that on the 16.8.1984 he visited the shops of the accused at Paphos and he purchased, among other goods, 24 okes chopped-shoulder of frozen lamb at C£1.70 cent per oke. The accused issued to him. the relevant Invoice No. 000655 dated 16.8.1984. The above invoice, together with the goods purchased, were delivered by him to Solomis Paraschou, the salesman of the said Co-operative Stores.
P.W.3, Solomis Paraschou, of Polis, salesman of Polis Co-Operative Stores, who, almost repeated what the above two prosecution witnesses said.
At the close of the case for the prosecution, the learned counsel of the accused submitted that a prima facie case has not been made out against the accused sufficiently to require the accused to make his defence, because, as he alleged, the prosecution failed to prove that the accused has committed any offence, or, at least the above charged offence, as there is no evidence before the Court that it is illegal or against the law to sell the shoulder of frozen lamb at the price of C£ 1.70 cent per oke and asked the Court to acquit the accused. [*4]
The above submission is based on section 74(1) (b) of the Criminal Procedure Law, Cap. 155, which reads as follows: -
“At the close of the case for the prosecution, the accused or his advocate may submit that a prima facie case has not been made out against the accused sufficiently to require him to make a defence and, if the Court sustains the submission, it shall acquit the accused”.
The question whether a prima facie case has been made out against the accused has been the subject of judicial consideration in a number of Cyprus and English authorities to which I will refer only to Kara-Mehmet case and to the Practice Note, of Lord Parker.
In R. v. Kara-Mehmet, 16 C.L.R. p.46, the question was answered by the Supreme Court as follows:-
“These definitions appear to me to demonstrate that ‘sufficient’ evidence must be evidence which is credited by the jury. And if it is not credited by the jury, then it is not evidence at all. If the Judges of the Assizes Court put no reliance on the credibility of the witnesses for the Prosecution, and there is no other evidence but this before [*5] them, then, I think they must direct themselves as jurors to the position of the case at the close of the prosecution. That position being, that there is no evidence before them which raises a presumption and calls for an answer from the accused. If the law does not permit them to do this, then, they must perform a sort of mental miracle and obliterate from their minds the impression of incredibility and the worthlessness of the testimony given by the witness”.
Further on it is stated:
“It is a different position, however, when the Judges of the Court have definitely come to the conclusion at the close of the case for the Prosecution, that the evidence of the witnesses for the Prosecution cannot be relied upon. If they are positive in their minds that the evidence of the Prosecution witnesses could not support a conviction, then, if the accused is called upon for his defence, the Judges must fully realize that, in truth he is not called on to defend himself, but, to supply defects in the evidence for the Prosecution.
I imagine it does not often happen that the Assize definitely decides as to the incredibility of the witnesses for the Crown [*6] at the close of the prosecution case. But if it does so happen, and the Judges are absolutely convinced it seems to me it would be unfair to put the accused on his defence in such circumstances”.
Finally it is stated: -
“The answer then to the first question is that when a decision is being come to as whether or not the evidence is insufficient or not, the credibility and demeanour of the witnesses may be considered”.
The Practice Note, of Lord Parker, which is reported in (1962) 1 ALL E.R. p.448, on the other hand, the relevant passage on the question reads as follows:-
“A submission that there is no case to answer may properly be made and upheld -
(a) When there has been no evidence to prove an essential element in the alleged offence;
(b) When the evidence adduced by the Prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. [*7]
Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but in whether the evidence is such that a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer”.
Guided by the above-mentioned principles, I will now proceed to consider the submission made by the learned counsel of the accused.
JUDICIAL NOTICE
Judicial Notice is the cognizance taken by the Court itself of certain matters which are so notorious, or clearly established, that, evidence of their existence is deemed unnecessary.
There is no express provision on the matter in our Evidence Law, Cap. 9, but section 3 of the said law provides: [*8]
“Save in so far as other provision is made in this Law or has been made or shall be made in any other Law in force for the time being, every Court, in the exercise of its jurisdiction in any civil or criminal proceedings shall apply, so far as circumstances may permit, the law and rules of evidence as in force in England on the 5th day of November, 1914”.
Under the English Law the judges are bound to recognize and take notice of the existence and contents of all public statutes and all Acts of Parliament of whatever nature passed since 1850 unless the contrary is expressly provided. The Court is bound to take notice of every branch of the English Law, including principles of International Law, Ecclesiastical Law and Maritime Law, thus if in a Common Law Court points of equity, or of parliamentary, ecclesiastical or admiralty law arise, they must be determined not by calling experts but by the Court itself either of its own knowledge, or by inquiry or by hearing authorities and argument.
As regards, however, subordinate Legislation, the position is quite different, and, by saying subordinate legislation, I mean legislation made by persons or bodies other than the Sovereign in Parliament, by virtue of powers conferred either [*9] by statute or by legislation, which is itself made under statutory powers. It is frequently referred to as delegated legislation in the former case and sub-delegated legislation in the latter and include such as Orders, Regulations, Rules, Byelaws, circulars and the like.
In Duffin v. Markham and Another, 88 L.J. K.B. 581 - Where proceedings were taken against the respondents in respect of alleged offences against the Bread Order, 1917 No. 189 made by the Food Controller under Regulations 2F of the Defence of the Realm Regulations the appellant, who was an inspector of police, having called evidence in support of the informations, stated that his case was closed, but he did not put in the Order itself. Thereupon, the solicitor for the respondents, without going into the merits of the defence or calling any evidence, took the preliminary objection, that no proof had been offered of the Order or the Regulation under which the proceedings had been taken and that no proof could then be given to remedy the defect. The Justices held that they had no judicial cognizance of the Order and they accordingly dismissed the summonses. Darling, J., after stating the facts, said:-
“.... that the course adopted by the Justices was not the proper one. They ought to have told the prosecutor that they had power to [*10] allow him to put in a Stationary Office copy of the Order if he had one available; and if he had not, that they would grant an adjournment. It was clear that if, in such circumstances, the Justices did not offer an adjournment, the Court could review their decision - See per Cave J., Hargreaves v. Hilliam. The Justices had apparently availed themselves of a mere oversight on the part of the prosecution to dismiss the informations, when it was obvious that, on the facts, there was no defence. They should have treated the objection of the respondents’ solicitor as a mere technical triviality. The appeal must be allowed”.
In Tyrell v. Cole, (1918) 120 L.T. 156, the accused was convicted of contravening a direction issued by the Food Controller under the Dried Fruits (Distribution) Order 1918. The direction was proved in Darling, J. ’s own words by “a leaflet which might have been printed by anybody and distributed by anybody to persons walking along the streets”.
There was nothing to show that the document was official and in the view of the Court “the proceedings were bad from the first as they violated an imprescriptible right of the British subject”. [*11]
It is clear from the above that it was not suggested that the direction was not a valid one but only that it had not been properly proved.
In Snell v. Unity Finance, Ltd. (1963) 3 ALL E.R. p.50 - In an action for damages arising out of the condition of a car sold to a purchaser under a hire-purchase agreement, the plaintiff, hire- purchaser gave evidence, which was accepted by the County Court, that, in order to avoid the requirement of a minimum deposit by the Hire-Purchase and Credit Sale Agreements (Control) Order, 1960, (See ibid. 1, art. 2 and Sch. 2, para.3) the cash price of the car was stated in the agreement as £210.- and the deposit as £50.- instead of the true amounts of £185.- and £25.-, which last sum was less than the minimum deposit required by the order. The plaintiff paid in cash only the £25. - Illegality of the agreement was not pleaded and was not raised in the county Court, where judgment was given for the plaintiff. On appeal by the defendant hire- purchase company the question of illegality was a ground of the appeal - Willmer, L.J., in his judgment said at p.55:-
“On the other side two points were argued for the plaintiff by Miss Viner in the course of her very interesting argument this morning. First, it was said that county court appeals [*12] unlike High Court appeals, are strictly limited by the enabling statute; and that to allow the appeal here would infringe the rule laid down by the House of Lords in Smith v. Baker & Sons, viz. that an appeal will not lie unless the point has been taken in the Court below. Secondly, it was urged that the point now sought to be taken depends on the admission of new evidence which was not before the County Court judge. The new evidence which is said that the defendants are seeking to put before the Court is the Hire-Purchase and Credit Sale Agreements (Control) Order, 1960, which was not apparently referred to in terms before the County Court judge.
I can deal with the latter point very briefly, I hope. I am satisfied that there is no merit whatsoever in that point. It seems to me that it is quite wrong to treat the order as being a matter of evidence. It is a statutory order having the force of a statute. It appears to me that it is that duty of a Court, when such a statutory instrument is brought to its attention to apply it”.
In Royal v. Prescott-Clarke and Another, (1966) 2 ALL E.R. 366 - Informations were preferred against the respondents, a learner driver and her driving instructor, charging the former with [*13] driving along a portion of a special road (a motorway) on which a learner driver was not permitted to drive, contrary to reg. 11 of the Motorways Traffic Regulations, 1959, and the latter with aiding and abetting her, contrary to s.35 of the Magistrates’ Courts Act, 1952. No evidence was given at the trial that any notice of the opening of the road as a special road had been published as required by reg. 1 of the Special Roads (Notice of Opening) Regulations, 1962, made under s. 20(5) of the Road Traffic Act, 1960, despite the fact that counsel for the respondents had intimated to the prosecutor that he would require proof of the regulations and notices. Winn, L.J., in his judgment at pp. 368 and 369, dealing with the matter, said:
“When the case had been concluded and counsel for the respondents was addressing the justices, he for the first time submitted to them, and his submission was upheld by advice that the clerk to the justices gave them, that the prosecution was bound to fail because there was no evidence before the justices that the provisions to which I have referred in respect of notices had been complied with; put slightly differently, that the prosecution had failed to satisfy the justices that any such notice had been published. The justices accepted those submissions, and they [*14] have stated in their Case Stated that they thought it was incumbent on the prosecution as a matter of law to prove affirmatively that the notices had been published. That is perfectly right, it was. It was part of the case for the prosecution, and a necessary part of it, and the justices thought that, since the appellant had failed to satisfy them that any such notices had been given, the prosecution had equally failed to satisfy them that the regulations applied to the relevant portion of the road”.
In R. v. Ashley, (1968) Cr. Law Review, p.51, the accused was convicted under s.40 of the Prison Act, 1952, for bringing spirituous liquor into a prison, contrary to the regulations of the prison. The regulations were not specified in the indictment and the rules were never formally proved. It was held by the Court of Appeal in quashing the conviction that: -
(a) It would have been preferable if the indictment had contained particulars of the rule which was contravened; and,
(b) that the rules should have been proved by the production of a Queen’s Printer’s copy. [*15]
From the above-mentioned decisions, the underlying principle is, that, save as otherwise provided by the enabling law, if, such regulations or orders are of a legislative character so as to form part of the enabling law, need not be proved. The Courts are bound to take judicial notice of them; it would be wrong in such a case to treat such regulations or orders as being a matter of evidence; they are statutory instruments and have the force of law. Otherwise such regulations and Orders must be proved by the Prosecution by any of the methods provided by the Law of Evidence, i.e. by the production of a copy of the Government Gazette, or a certified copy of it.
Reverting now to the facts of the above case section 3(1) of The Supplies and Services (Transitional Powers) (Continuation) Law, Cap. 175A provides:-
“If after the expiration of the Act, it appears to the Council of Ministers to be necessary or expedient that any Defence Regulation should have effect for the purpose of so maintaining, controlling and regulating supplies and services as - (a), (b), (c), (d), (e), (f), (g), (h), and (i), they may by Order direct that the Regulation shall have effect by virtue of this Law”. [*16]
Under reg. 61(1) of the Defence Regulations, 1940, which were made by the Emergency Powers (Defence) Act, 1939, now not in force, it is provided:
“The Competent Authority, so far as appears to that authority to be necessary in the interests of defence or the efficient pro- secution of the war, or for maintaining supplies and services essential to the life of the community, may by order provide,
(a)………………….
(b)………………….
(c)………………….
(d)………………….
and an order under this regulation may prohibit the doing of anything regulated by the order except under the authority of a licence granted by such authority or person as may be specified in the order, and may be made so as to apply either to undertakings generally or to any particular person or undertaking or class of persons or undertakings, and either to the whole or to any part of any undertaking, and so as to have effect either throughout the Colony or in any particular area therein”.
It is crystal clear that two quite different Orders by the appropriate authorities ought to have been made in order to constitute the offence charged. One Order under section 3(1) of Supplies [*17] and Services (Transitional Powers) (Continuation) Law Cap. 175A and one under reg. 61 of the Defence Regulations, 1940. There is no doubt, that, such Orders made by the above-mentioned enactments are of an executive character and aim to activate and put in force the relevant regulations for maintaining supplies and services essential to the life of the community and in the present case controlling the prices and are not legislative in character.
There is no evidence before me that the said two Orders were made by the Competent Authorities i.e. the Council of Ministers and the Minister of Commerce and Industry of the Republic of Cyprus respectively.
In the result, I find that an essential element to establish the offence charged is missing. The submission of the learned counsel of the accused is, therefore, sustained.
Accused is acquitted and discharged.