Court acquits accused for false swearing as false declaration lacked material consequence to the application's determination.

[*223] 1976 May 3

(HJICONSΤΛΝΤΙΝΟU, S.D.J.)

IN THE DISTRICT COURT OP NICOSIA

Police

v.

Andreas Charalambous HjiKypri,

Accused.

(Criminal Case No. 23342/75)

Criminal Law - False swearing - Sections 117 and 35 of the Criminal Code, Cap. 154 - Section. 117 not an independent section, but it must be read in conjunction with the perjury section 110(1) - Falsehood envisaged by said section 117, contained in a declaration, must be of material consequence to the determination of any matter sought to be effected by the declaration.

Police Sergeant Michaelides, for the Prosecution.

E. Efstathiou, for the accused.

RULING

The following ruling was delivered by:-

HJICONSTANTINOU. S.D.J. : The accused is charged [*224] with making a false swearing, contrary to sections 117 and 35 of the Criminal Code, Cap. 154.

At the close of the case for the Prosecution the learned counsel for the defence submitted that the Prosecution failed to make out a prima facie case, and asked the Court to acquit the accused. Particularly, the learned counsel maintained that section 117 must be read in conjunction with the perjury section, the ingredients of which have not been proved. The Prosecuting Officer opposed to the said submission,and maintained that section 117 is independent and has no relation to the perjury section, adding that in any case the ingredients of the perjury section have been proved.

Section 117 provides, inter alia, that it is a misdemeanour for anyone to make a false declaration before a person authorised to receive a declaration, under such circumstances that if the false declaration was made in the course of judicial proceedings, it would have amounted to perjury. From the above wording of the section it follows that it is not an independent section, and that it must be read in conjunction with the perjury section. In accordance with the provisions of section 110(1), the perjury section, any falsehood in the statement of a person, a witness in judicial proceedings, to come within the ambit of the section, must (a) be within his knowledge and (b) touch something which is material to the determination of any question arising in the proceedings or intended to be raised in the proceedings.[*225]

By analogy, the falsehood envisaged by section 117, contained in a declaration, must be of material consequence to the determination of any matter sought to be effected by the declaration. Therefore, the purpose for which the declaration is made and the object sought to be achieved thereby are the relevant factors in the light of which the Court will decide the materiality of any statement made in the declaration.

In England, materiality in the context of the Forgery Act, 1911 is a question, of law for the judge. In Cyprus, the matter is not regulated by statute, perhaps wisely so as there is no jury, but, in my view, the question of materiality is one of mixed law and fact. One must first decide, as a matter of law, what are the material aspects of a given inquiry in the case of forgery, or a declaration under section 117, and then decide as a matter of fact whether the statement, in the circumstances and context in which it has been made, has a direct bearing on the determination of the material aspects of the inquiry or declaration under consideration. Whereas statements made by a witness, in the course of a criminal trial, on a matter affecting his credit are ordinarily consequential as they affect the weight that may be given to his testimony, a false statement made in the course of a criminal trial, by the accused whilst testifying, relating to antecedents, of the distant past, has been held immaterial as it could not possibly, because of the age gap and nature of antecedent, affect the weight that the jury might accord to his testimony. See:

R. v. Sweet-Escort (1971)

55 Cr. App. R. 316. [*226]

In the present case the alleged false declaration is contained in an affidavit sworn by the accused and filed in support of his application No. 19/74, by which he was appealing against the

decision of the Director of the Lands and Surveys Department fixing a date for the sale by auction of the immovable property of the accused. In support of the appeal, a said number of grounds are being put forward; they appear in the/application - exhibit 4 - and I need not repeat them.

However, having carefully read and considered the alleged false statement in the circumstances and the context in which it has been made, it appears to me that the said statement has no direct bearing on any material question sought to be determined by the said application. Therefore, I rule that the alleged false statement is not a material statement for the purposes of the determination of the application in respect of which the said statement was made. Having ruled as above, it appears clearly that a serious ingredient of the offence with which the accused is being charged is missing. In view of this, I consider it unnecessary to proceed and determine as to whether the alleged statement was in fact and in truth a false one.

Consequently I find that the Prosecution failed to make out a prima facie case against the accused so as to justify the Court in calling upon the accused to make his defence.

Accused is, therefore, acquitted and discharged. £42.- costs to be paid by the Republic.

Accused acquitted and

discharged.