Supreme Court dismisses application for bank book order, ruling Assize Court has competence under relevant statutes.

[*262] 1973 MARCH.16

(TRIANTAFYLLIDES, P., STAVRINIDES, L, LOIZOU,

HADJIANASTASSIOU, A, LOIZOU, MALACHTOS, JJ.)

The Attorney-General of the Republic,

Applicant,

v.

Theocharis Theocharides & others,

Respondents.

(Criminal Application No. 1/73).

Evidence - Entries in bank hooks - Criminal proceedings before an Assize Court - Bank not a party thereto - Order -under section 6 of the Bankers’ Books Evidence, Act, 1879 - Can he made y Assize Court - Section 3 of the Evidence Law, Cap. 9, section 3 et seq. of the by Courts of Justice Law, 1960 (Law 114. of 1960) and section 17 of the Interpretation Law, Cap.

A. Evangelou, Counsel of the Republic, for the Applicant.

L. Clerides with A. Angelides, for the Respondent-Accused.

X. Clerides, for the Respondent Barclays Bank International Ltd.

A. Papageorghiou in person for the Respondent Bank of Cyprus Ltd.

DECISION

The decision of the Court was delivered by: -

TRIANTAFYLLIDES, P.: We are dealing [*263] with an application made by the Attorney-General of the Republic in connection with the trial of a criminal case, 10649/72, which is proceeding before the Assize Court of Nicosia.

The application has been made under section 6 of the Bankers’ Books Evidence Act, 1879. There is no dispute that this Act is to be applied in Cyprus by virtue of section 3 of the Evidence Law, Cap. 9.

The application has been served on the two banks concerned, the Barclays Bank International Ltd. and the Bank of Cyprus Ltd., as well as on the accused in the said criminal case.

We have considered the question of the competence to make an order under section 6 and we are of the view, not only because of the provisions of the said section 3 of Cap. But, also, in the light of the structure of our judicial system (see section 3 et seq. of the Courts of Justice Law, 1960, II4/60) and because of section 17 of the Interpretation Law, Cap. 1, that the trial court is competent to make the order applied for; and as this application should have been made to such Court in the first instance, it has, in any case, to be dismissed on this ground. We are not expressing any view regarding whether there also exists competence of a judge of the Supreme Court to make such an order; we are leaving this question open.

But we would like, in any event, to observe that the matter concerned has arisen, before, and been dealt with [*264] by, the trial Court, and this application to us has been made, because of the impression that unless an order under section 6 was made there did not exist other legal means to compel proof of the banking transactions of the accused during the relevant period, that is from the 1st September, 1969, to the 1st September, 1971.

It would, therefore, be useful, in this respect, to refer, to a case which has not been mentioned in argument, but which can be found referred to in the notes to section 6 of the 1879 Act in Halsbury’s Statutes of England, 3rd Ed. vol. 12 849, and which shows what is the position in law in the matter: In Emmott v. The Star Newspaper Company, (1892) L.J. Q.B. 77, Lord Coleridge, C.J., stated the following, in dealing with an application under section 7 of the Bankers' Books Evidence Act, 1879:

"What was the duty of a banker in regard to the ‘’ supplying of evidence at the time when this Act was passed? It was the same as that of any other person. He was obliged to attend under a subpoena with his books if their contents were receivable in evidence. But this was said to be a grievance in the case of bankers, and to cause to that class a peculiar and practical hardship in disturbing their business and displacing their business books, filled as they were with the details of other people’s affairs quite external to the matters in dispute.

The Act, or rather the original Act of 1876, which the Act of 1879 repeals, [*265] and for which it is substituted, was passed to give a sensible and reasonable relief for this particular class of persons, but not to alter the whole of' the rules of evidence so as to place bankers in a different position in regard to giving evidence from any other subjects of the ‘’Queen. Bankers are not to be so differently treated, nor was any such change intended. They remain bound at common law to attend and to produce their books under subpoena, except in so far as the inconvenience may be modified by the statute.

That is to say, they are allowed by the Bankers’ Books Evidence Act, 1879, to prove the entries in their books by copies verified orally, or on affidavit, as being correct, and as being made from the ordinary books of the bank, and as having been entered also at the time in the usual and ordinary course of business. Then, under section 6, a banker is to be relieved from being compelled to attend and produce his books in any proceedings to which his bank is not a party, so long as the contents of these books can be proved in the manner provided by the preceding sections, unless by order of a judge made for a special cause.

The section does not say that he is not to be compellable in any cases where the contents of the books could formerly be proved at common law but only in cases ’where their contents can be proved in the manner provided by this Act’. If the banker does not [*266] choose to follow out these provisions of the Act, he is left with the old burden of personal attendance and production of the books. The construction contended for by the defendants would otherwise give a banker an unreasonable amount of relief If the banker will not attend or supply the copies required at the trial, he must be subpoenaed to produce the books at the trial as before the Act.

If he will not take the course pointed out by the Act, or attend under the subpoena, he will find himself in a bad way at the trial. That would be an attempt to defy the jurisdiction of the Court, and could be dealt with as such".

and Smith, L.J., stated: -

"What is the true meaning of the Act? That bankers were not in any case to which their banks were not a party to be compelled to appear or to produce their books? I do not think that this is the construction of sections 6 and 7. Sections 2 to 5 were passed for the benefit of bankers, to enable them to prove entries by copies, and to verify the copies on oath, either by sending a clerk to attend the trial, or by affidavit. Then comes section

6. It does not stand alone. It must be read in conjunction with sections 2, 3, 4 and 5 Taken together, the sections convey that if a banker chooses to take advantage of these first sections, he shall not be compelled, in cases to which section 6 [*267] applies, to attend or to produce his hooks without an order of the Court made in view of special circumstances".

In the light of this judgment the required evidence may possibly be placed before the trial Court without there existing any need for an order under section 6.

Order accordingly.