[*557] 1986 July 18

 

(KALLIS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Police

v.

Hachnik Nazaret Kasardjian,

Accused.

(Case No. 11011/86).

Criminal Procedure - Charge - Particulars - Driving without due care and attention - Particulars stated only that accused was driving "without due care and attention" - Application for further particulars at commencement of the hearing by accused - Offer by prosecution to make available to defence the complete police file - A praiseworthy offer, which would normally seal fate of application - But in view of rejection of the offer and in order to save time Court ordered the prosecution to give particulars.

P.C. L. Kyriakides, for the Prosecution.

S. Devledian, for the Accused.

RULING

The following ruling was delivered by:-

KALLIS. D.J.:- At the commencement of the hearing of this case in which the accused is charged of the offence of driving a motor vehicle on a road without due care and attention, contrary to sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972, learned counsel appearing for him stated that the particulars of the offence state only that the accused was driving "without due care and attention" and contain no further particulars to enable him to prepare his defence. [*558]

The Police Officer, who is appearing for the Prosecution, volunteered to place the file of the case with all the statements of the witnesses at the disposal of counsel, but counsel declined to make use of this praiseworthy offer of the Prosecution and insisted to be given particulars of the offence.

The legal position regarding particulars is very well settled. I cite in this respect from p. 47 of the textbook Criminal Procedure in Cyprus by A. Loizou and G. Pikis the following:-

"The charge must contain sufficient particulars to enable the accused to know with reasonable certainty the case he has to meet at the trial. In deciding if a charge is sufficiently detailed, what has to be examined is whether or not an accused person has been deprived, through the omission from the charge of any element, of the possibility of adequately preparing his defence (Kannas (alias Pombas) v. The Police (1968) 2 C.L.R. 29). The requirement to afford, before trial, to an accused person sufficient information about the offence with which he is charged, is now embodied in Article 12.2 of the Constitution and forms part of the fundamental rights of the accused. It imposes a duty to state all the essential details of the offence (Chrysostomou v. The Police (1971) 7 J.S.C. 1016)".

In the case of Panayiotis Foka Kannas alias Pombas v. The Police (1968) 2 C.L.R. 29, in which the accused was convicted of the offence of causing death by a careless act and in the particulars of the offence he was only told that his "careless act" was "careless driving"; it was held that the appellant was not "deprived of the possibility of adequately preparing his defence because of the lack of any details in the charges". Relevant is the following passage from the judgment of Triantafyllides, J. - as he then was - at pp. 37-38:- [*559]

"It appears from the foregoing that, in deciding if a charge is sufficiently detailed, what has to be examined is whether or not an accused person has been deprived, through the omission from the charge of any element, of the possibility of adequately preparing his defence; and in this connection regard must be had to any circumstances showing that such accused person has in fact knowledge of the essential elements of the offence with which he was charged.

Applying the above test to the present case we find that, though the appellant was only told, by means of the particulars of the two counts on which he has been convicted, that his ‘careless act' was ’careless driving', and he was not given in the said counts any details regarding his 'careless driving', nevertheless, the appellant, having been present when the police took relevant measurements on the spot, after the accident, and having seen the real evidence discovered there, such as the length and direction of the marks on the asphalt left by the tyres of his lorry, must have known - and been in a position to instruct his counsel accordingly - of the essential elements constituting his 'careless driving'; thus, the appellant was not deprived of the possibility of adequately preparing his defence because of the lack of any details in the charges.

Moreover, it is worth drawing, in this respect, attention to the fact that the appellant, at the commencement of the trial, did not apply, as he was entitled to do, for further particulars of the charges; apparently, such a course was not deemed necessary by his counsel".

In the case of Chrysostomou v. The Police (1971) 2 C.L.R. 176, where the accused, same as in this case, was charged of the [*560] offence of careless driving and no particulars of the careless driving were given, it was held that the Court of Appeal would not have held that the conviction ought to be set aside due to a contravention of the provisions of Article 12(5)(a) of the Constitution. Triantafyllides, P. Is quoted to have said at p. 178 of the report:-

"... we would like to draw attention to the right, under Article 12(5)(a) of the Constitution, of every person charged with an offence to be informed 'in detail of the nature and grounds of the charge preferred against him', and to observe that, though in the present instance for the same reasons as those given in the case of Kannas v. The Police (1968) 2 C.L.R. 29 (viz. that, in the circumstances, the appellant had in fact knowledge of the essential elements of the offence with which he was charged, even if they were not included in the particulars of the count on which he was convicted) we would not have held that the conviction ought to be set aside due to a contravention of the provisions of Article 12(5)(a), care should always be taken to state in criminal charges all essential details".

It has also been held in the case of Attorney-General of the Republic v. HjiConstanti (1969) 2 C.L.R.5, that the accused is entitled to apply for further particulars of the charge if it was not sufficiently detailed and the same position was reiterated in the case of Azinas v. The Police (1981) 2 C.L.R. 9.

It should be stated that careless driving may consist of one or more acts and omissions and so it is difficult to define with precision the extent of the particulars which a charge of careless driving should contain in order to satisfy the requirement about "particulars". Let me say straight away that the offer of the prosecution to make available the file of the case to the defence [*561] should have normally sealed the fate of the application for particulars because, indeed, by a perusal of the file the defence would have been enabled to acquire "knowledge of the essential elements of the offence" with which the accused stands charged.

Once, however, counsel has applied for further particulars of the charge at this very initial stage of the proceedings, as prescribed by the case-law, this Court, without deciding that the charge as framed lacks in particulars, is of opinion that these proceedings will be speeded and facilitated if the prosecution gives here and now to the defence particulars of the careless act or acts alleged, rather than the whole file of the case, whose perusal is time-wasting; and it is so directed.

Order accordingly