[*562] 1986 September 17
(KALLIS, D.J.)
IN THE DISTRICT COURT OF NICOSIA
Nicosia Police v.
Stelios A. lerides and Another,
Accused.
(Case No. 25136/86).
Criminal Procedure - Charge - Quashing of - Proper time of relevant application - Before plea, unless there is a substantial and apparent defect, in which case the Court will quash it, even though the motion was made after plea - The Criminal Procedure Law, Cap. 155, section 66.
Criminal Procedure - Joinder of offences - Joining conspiracy count with counts for the substantive offence - Principles applicable - Extensive reference to case law.
S. Matsas, Counsel of the Republic, for the Prosecution.
N. Panayiotou, for accused No.1.
L.N. Clerides with N.L. Clerides, for accused No.2.
RULING
The following ruling was delivered by:-
KALLIS. D.J.:- At the commencement of the trial of the above accused on 13 counts (6 for conspiracy to commit a felony, 3 for forgery, 3 for uttering a forged document and 1 for attempting to obtain money by false pretences) learned counsel appearing for them moved the court to quash the charge - in the end they submitted that they will be content with the quashing of the conspiracy counts - by invoking the general rule to the effect that "where there is an effective and sufficient charge of a substantive [*offence, the addition of a charge of conspiracy is undesirable".
Though the motion - contrary to s.66 of Cap. 155 – was taken after plea, learned counsel for the accused submitted that the alleged defect was of such a nature that it went to the root of the charge and could, thus, be raised at any stage. Regarding the substance of the motion the gist of the submission of learned counsel for the defence was:
In conspiracy counts there is admitted evidence which is not admissible in the substantive counts and such a course will operate prejudicially, unfairly and unjustitly against the accused. In support of their submission learned counsel relied on Cooper v. R.. 32 Cr. App. Rep. 102; Griffiths v. R. 49 Cr. App. Rep. 279; Verrier v. D.P.P.. 50 Cr. App. Rep. 315; Dawson v. R.. 44 Cr. App. Rep. 81, and Reg, v. Boulton. 12 Coxs Cr. Cases (1871-1874) 87.
On the other hand, learned counsel for the prosecution submitted that there are exceptions to the general rule which was enunciated by the aforementioned case-law; and referred in this respect to Archbold Criminal Pleading Evidence and Practice, 42nd ed. p. 2286. He, further, submitted that the objected inclusion I necessary in order to enable the prosecution to present the picture of the overall criminality of the conduct of the accused; and this overall picture cannot be created and presented before the Court if the conspiracy counts are quashed. He, also, submitted that the facts surrounding the conspiracy counts and the substantive offences counts are so closely interwoven and are so closely connected in terms of time so that it will be impossible to lay before the Court the case for the prosecution if the conspiracy counts are quashed and that, on the contrary, the purposes of justice will be better served if the indictment is left intact.
Dealing first with the question of the proper time for moving [*564] the court to quash the indictment, the matter is governed by s.66 of the Criminal Procedure Law, Cap. 155 whereby the Court must be moved before the accused pleads to the charge. According to "Criminal Procedure in Cyprus" by Loizou and Pikis, p. 83 "the defect,however, must be of a formal nature; if the defect goes to the root of the charge, for instance, where a count is bad for duplicity, the accused will be free to take the objection to the charge at any stage of the proceedings". Also, in Archbold (supra) it is stated that though the proper time for making such application is before plea, this while just and convenient is not essential and where an indictment has a substantial and apparent defect the Court will quash it on motion by the defendant after plea. Relevant is, also, the following passage from the case of Thompson v. R.. 9 Crim. App. Rep. 252 at p. 259:
"We are of opinion that there being a defect on the face of the indictment, the objection should in strictness be taken before plea, and therefore the technicality raised by the defence could be met by a technicality raised by the Crown, but this Court will always be very reluctant to lay down any hard and fast rule which would prevent the defence raising any objection based on an irregularity or defect in the proceedings at any time".
In this case notwithstanding that the motion was taken after plea, having taken into consideration that the alleged defect is a substantial one, I have decided to take cognizance of the motion and I will hereinafter deal with its substance.
The matter is not devoid of authority:
In Constantinides v. Republic (1978) 2 C.L.R. 337 in which a count for conspiracy to defraud was included in an indictment containing counts of forgeries of cheques, of uttering false documents and of attempting to obtain money by false pretences, [*Triantafyllides, P., delivering the judgment of the Court of Appeal said the following at pp. 359-360:
"The principles relating to the Inclusion of a count for conspiracy in an information containing counts for related substantive offences are set out in, inter alia, Archbold's Pleading, Evidence and Practice in Criminal Cases, 39th ed., pp. 1686-1687, para. 4073. It is true that 'as a general rule where there is an effective and sufficient charge of a substantive offence, the addition of a charge of conspiracy is
undesirable'; but there are exceptions to such rule, such as 'cases of complexity in which the interests of justice can be served by presenting to a jury an overall picture and in which that cannot be done by charging a relatively small series of substantive offences' and 'where charges of substantive offences do not adequately represent the overall criminality".
In R. v. Jones and Others. 59 Crim. App. Rep. 120, James, L.J. stated the following (at p. 124):-
"The question whether a conspiracy charge is properly included in an indictment cannot be answered by the application of any rigid rules. Each case must be considered on its own facts. There are, however, certain guiding principles. The offences charged on the indictment should not only be supported by the evidence on the depositions or witness statements, but they should also represent the criminality disclosed by that evidence. It is not desirable to include a charge of conspiracy which adds nothing to an effective charge of a substantive offence. But where charges of substantive offences do not adequately represent the overall criminality, it may be appropriate and right to include a charge of conspiracy. [*
The indictment ought to include those charges which make for simplification of the issues and which avoid complexity and the need for multiplicity of counts. In some cases a conspiracy count may involve complexity which counts for substantive offences would avoid; in other cases a charge of conspiracy may be the simpler way of presenting the case to the jury because the alternative would be to proceed on a substantial number of charges of substantive offences. A further guiding principle is that a count for conspiracy should not be included with counts charging substantive offences if the inclusion will result in unfairness to the defence. This is an aspect which has to be weighed with the other considerations'.
With the foregoing in mind, we feel that we are not satisfied that there has resulted any irregularity or any unfairness or otherwise any prejudice to the appellant due to the inclusion in the information of a conspiracy count. It is to be noted that this count was necessary in order to place before the trial Court the picture of the overall criminality of the conduct of the appellant and his co-conspirators, one of whom Shahada Halaf was not mentioned in the information in relation to any one of the other counts for the substantive offences, and, therefore, it can be rightly said that the conspiracy count was not based on exactly the same facts as those which related to the counts for the substantive offences charged by means of the same information.
Nor do we find well-founded the complaint of counsel for the appellant that the trial Court refused to order a separate trial of the appellant on the count of conspiracy. In our opinion, the facts of this case which relate to the conspiracy are closely interwoven with the remaining facts of the case which relate to the counts for the substantive offences; so, [*rightly the trial Court refused the application for a separate trial, as aforesaid. It is to be borne in mind, in this respect, that in its relevant ruling the trial Court stated that it would be guided by the need for great caution in order to ensure that no evidence would be given due to the inclusion of the conspiracy count which would be inadmissible and, also, that care was required to keep all the several issues perfectly clear".
In the case of Papadopoullos v. Republic (1980) 2 C.L.R. 10, A. Loizou, J. giving the judgment of the Court of Appeal in a Full Bench case said the following at pp. 36-38:
"The joining of several offences in the same charge or information against the same person is permitted by our section 40 of the Criminal Procedure Law, Cap. 155. In such a case the Court may either convict or acquit the accused generally upon the whole charge, or convict him upon one or some and acquit him upon other counts. If, however, different counts relate to different facts and if the Court thinks it conducive to the need of justice to do so It may, at any stage of the proceedings, direct that the accused shall be tried separately upon anyone or more of such counts. The factors to be taken into consideration in deciding whether the interest of justice requires a separate trial or not, are whether such joinder of offences would be oppressive for the accused to defend himself as he would be prejudiced thereby in that inadmissible evidence in respect of one count may be admitted in relation to another and so embarrass him in the conduct of his defence. This latter ground of course is one of the dangers that should not be exaggerated as Judges more so than Juries can be expected to approach the evidence in the proper manner. [*
Matters relating to such joinder of offences or offenders are matters of practice on which the Court has unless restrained by Statute, inherent power both to formulate its own rules
and to vary them in the light of current experience and the needs of justice. (See R. v. Assim. 50 Crim. App. Rep. 224).
……………………………………………………………………………………………………..
Also the joining of a count of conspiracy with a count or counts for substantive offences is an undesirable practice and can in some cases work hardship on the defendant. (See R. v. Dawson. R. v. Wenlock (1960) 1 All E.R. 558, R. v. Griffiths and Others (1965) 2 All E.R. 448). The inclusion, however, of a count for conspiracy in an indictment charging the accused with other counts as well cannot by itself lead to unfairness. The circumstances of a case may be such as to warrant the inclusion of such a count and to call for it in the public interest for the due administration of justice.
(See R. v. Meyrick. 21 Crim. App. Rep. 94 at p. 103 and also the dictum of Sankey J. from R. v. Luberg. 19 Crim. App. Rep. 133 where at p. 137 it reads:
'It is a perfectly admissible and proper course to pursue, and a course which is often pursued but we think that if that course is pursued, great care and great caution is necessary during the hearing of the evidence to be quite sure that no evidence is given which is inadmissible and great care is required in the summing-up to keep all the several issues perfectly clear'.
In the case of Constantinides v. The Republic (1978) 2 C.L.R. 337 at pp. 359-360 the position of the Law on the inclusion of a count of conspiracy in an information containing counts for related substantive offences was examined. Reference was made therein to the principles on the subject stated in [*Archbold's Pleading, Evidence and Practice in Criminal Cases, 39th ed., pp. 1686-1687, para. 4073 and the case of R. v. Jones and Others. 59 Crim. App. Rep. 120, and the guiding principles as stated by James L.J. at p. 124 thereof which I need not repeat here. Suffice it to give here the opening sentence of that passage, namely that 'the question whether a conspiracy charge is properly included in an indictment cannot be answered by the application of any rigid rules. Each case must be considered on its own facts'.
If no doubt the joining of a conspiracy count with counts for specific offences is a legitimate course for a trial by Jury, 'afortiori it may be adopted with more immunity before a Judge or Judges sitting without a Jury as it can be confidently expected, given their training and experience, to be in a position to draw the line, where such a line should be drawn, in the interests of justice'. (See Loizou and Pikis, Criminal Procedure in Cyprus, 1975, p. 58)".
As it will be seen from the above authoritative pronouncements, Cyprus case-law does not exclude the complained of joinder.
Going now to the English case-law we find that there are exceptions to the above general rule: These are the following: (Vide Archbold (supra) 39th ed. para. 4073).
(a)Cases of complexity in which the interests of justice can be served by presenting to a jury an overall picture and in which that cannot be done by charging a relatively small series of substantive offences: The indictment ought to include charges which make for simplification of the issues and which avoid complexity and the need for multiplicity of counts. Sometimes a charge of [*conspiracy may be the simpler way of presenting the case.
(b) Cases in which general conspiracy, e.g. to steal is likely to be inferred by the jury from the evidence but in which the particular acts constituting the thefts may only be supported by rather nebulous evidence. Where there is clear evidence of conspiracy but little evidence that any of the conspirators committed any of the over acts, a count for conspiracy is both justifiable and necessary.
(c) The offences charged in the indictment should represent the criminality disclosed by the evidence. Where charges of substantive offences do not adequately represent the overall criminality it may be right and appropriate to include a charge of conspiracy.
Looking now at the indictment we find that the alleged offences were committed during a period of time commencing from 12.5.86 and ending 30.5.86 and some of the alleged substantive offences precede the alleged conspiracies and some follow them. It is, thus, clear that the various facts surrounding the alleged conspiracies are very closely interwoven with the remaining facts of the case which relate to the counts for the substantive offences.
Having anxiously considered the matter in the light of (a) the contents of the indictment, (b) the above legal position and (c) the relevant submissions of counsel, I have arrived at the conclusion that these cases fall within the aforesaid exceptions (a) and (c) to the general rule and the conspiracy counts could, therefore, be included in the indictment. The motion must therefore fail.
Having concluded as above, I would add that much as I respect the right of these accused - and of every accused - to a fair trial, I entertain the same respect to the right of the [*571] prosecution - a course demanded by the public interest - to present its case properly and effectively and in a spirit of fairness without any obstacles. Adopting the course suggested by the defence would be tantamount to obstructing the course of justice and it is my duty to keep the stream of justice clear and pure.
I would, also, state - like my brethren trial Judges in the Constantinides case, supra - that I "would be guided by the need for great caution in order to ensure that no evidence would be given due to the inclusion of the conspiracy count which would be inadmissible and, also, that care will be required to keep all the several issues perfectly clear".
In the result, the motion is dismissed.
Motion dismissed.