Court dismissed prosecution's withdrawal application under s.91 CPL as it lacked public interest justification.

[*340] 1982 February 1

(ELIADES, D. J.)

IN THE DISTRICT COURT OF FAMAGUSTA, SITTING AT LARNACA,

Police

v.

Antonis Charalambous Fanieros,

Accused.

(Case No. 2241/81).

Criminal Procedure - Charge - Withdrawal - Section 91 of the Criminal Procedure Law, Cap. I55 - Discretion of the Court - Principles applicable - Article 113(2) of the Constitution.

Ch. Koulentis, for the prosecution.

Demetriou, for the accused.

JUDGMENT

The following judgment was delivered by:

ELIADES,D. J. : Before accused was asked

"See opinion of Supreme Court in Q.L.R. 191 overruling this ruling".[*341] to plead to charges of (a) Public insult contrary to s.99 of the Criminal Code Cap. I55 (by insulting a police-constable on the Larnaca-Dhekelia road-block with the words "είσαι σιέσης τζιέ πούστης” and of (b) Failing to carry with him his driving license contrary to s.46(I) of the Motor Vehicles and Road Traffic Regulations of 1973, the Prosecution submitted that they had instructions from the office of the Attorney-General to withdraw the case by virtue of the provisions of Article 113(2) of the constitution.

S.113(2) provides that, "The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions".

The right to withdraw a criminal charge pending before a Court of Law may arise in one of the following ways:

S.91 of the Criminal Procedure Law Cap. 155 provides that, "if a prosecutor in any summary

"trial, at any time before a final order is passed, satisfies the Court that there are sufficient grounds for permitting him to withdraw the charge, the Court may permit him to withdraw the same and shall thereupon acquit the accused. Provided that,[*342] if the charge is so withdrawn before the accused had pleaded to it, the. accused shall be discharge but such discharge shall not operate as an "acquittal".

This section puts down in a statutory form the inherent power of the Court to regulate proceedings before it. It takes the form of a discretionary power which must be exercised judicially in the interests of justice and cannot be made the subject matter of a bargain between the Prosecution and the Defence. When the Prosecution and the Defence had come to an agreement as to the withdrawal of one of the charges preferred against accused, the latter undertaking to plead guilty to the remaining charge, it was held that the Court was not bound by such an agreement without inquiring into the relevant facts. (See R. v. Bedwellty Justices, Ex Parte Monday 1970 CRIM. L.R. p.601).

The withdrawal of the charge may be allowed where there is no evidence to support the charge as well as in the case where leave is applied to "withdraw a charge so as to avoid any element of oppression that may result because of the large number of charges which have been simultaneously preferred against accused, as for example in Akritas v. Regina (20 C.L.R. p. 110) where the Supreme Court observed that 20 different offences on two counts of falsification of accounts and embezzlement was an undesirable way of proceeding against appellant.

The Court will exercise favorably its discretion[*343]when the evidence as has been adduced in the course of trial, does not support one of two alternative counts in which case leave will be granted for the withdrawal of one of the alternative counts.

Where the hearing of the case has started and evidence has been heard on application for leave to withdraw the main consideration upon which the Court will exercise its discretion will be whether the evidence already adduced is so unreliable that it cannot support the charge; otherwise, the Court will be turning a blind eye to illegality.

The Court will not pause and evaluate the evidence for the prosecution before the case for the prosecution is closed but there are cases where the evidence is so unreliable or so discredited that the Court can say with certainty that the evidence cannot, possibly support the charge . -

A Court of law will not normally allow convenience to impede the course of justice. The discretion of the Court, as wide as may be, it is not unfettered and cannot be exercised at will, the paramount consideration being always the protection of the interest of justice. And it is within this respect that the Court will require sufficient reasons to be given in support of an application for the withdrawal of a criminal case as such an application is always a matter of public concern.

(B) By virtue of s. 154(I) of the Criminal Procedure Law Cap. I55 the Attorney-General of the Republic has the right[*344]in any criminal proceedings and at any stage thereof to enter a nolle prosequi whereupon the accused is discharged at once in respect of the charge or information for which the nolle prosequi is entered.

A nolle prosequi is usually entered in cases where the accused person cannot be produced in Court to plead or stand trial due to mental or physical incapacity which is of a permanent nature and it can be entered only on the directions of the Attorney-General (See R. v. Row lands

17 Q.B. 671).

A nolle prosequi may be entered at any stage before judgment (R. v. Dunn I C and K. 730) but it cannot be entered during appeal proceedings (Isaias v. Police (1966)lo J.C. p. 1954).

This power of the Attorney-General is not subject to any control by the Courts, (R. v. Comptroller of Patents (1899)I. Q.B. p. 909) but is open to criticism by the Legislature and in England its abuse is prevented by the ordinary principle of Ministerial responsibility (Queen v. Allen (1862)I B. And S. 850). The filing of a nolle prosequi puts an end to the prosecution but does not operate as a bar, discharge or an acquittal on the merits, and the party remains liable to be recharged or re-indicted.(See Goddard v. Smith 3 SALK. 245).

In deciding whether to prosecute or not a particular case the Attorney-General may have regard to a variety of considerations, all of them leading to the final question:[*345]

Would a prosecution be in the public interest including in that phrase of course in the interest of Justice? (See Nina Ponomareva, Crm. L.R. p. 725).

It has been submitted that the provisions of Article 113(2) of the Constitution are wide enough so as to confer power on the Attorney-General to withdraw a case in any manner he chooses either in writing or orally. Therefore the provisions of s. I54 of the Criminal Procedure Law Cap. I55 should be construed accordingly in the light of article 188(1) of the Constitution requiring modification of pre - 1960 Laws to bring them into accord with the Constitution.

I am unable to uphold this submission. There is nothing inconsistent or repugnant with the Legislature regulating the manner in which the undisputed right of the Attorney-General may be exercised. In fact there are sound reasons for its exercise in the manner prescribed by s.I54 of the Criminal Procedure Law Cap. I55. Most so as the right of the Attorney-General under article 113(2) of the Constitution extends to both private and public prosecutions. S.I54 of the Criminal Procedure Law Cap. I55 in no way limits the right of the Attorney-General to terminate proceedings. It simply regulates the way in which it may be exercised.

In my judgment in the absence of a nolle prosequi in accordance with S.154 of the Criminal Procedure Law Cap. I55 all prosecutors applying for leave to withdraw are in[*346]the same position and it matters hot that an application for withdrawal under s.91 of the Criminal Procedure Law Cap. I55 has in addition the oral approval of the Attorney-General.

The Court, must be satisfied that the withdrawal must be in the interests of justice and in as much as I have not been satisfied that this is so, I dismiss the application. The proceedings shall continue.

Application dismissed.