Criminal appeal allowed; retrial ordered due to trial court error on property category affecting defense.
Cipro (CY)
Sintesi Legislator
Generato dall'IAThe Supreme Court allowed the appellant's appeal against her conviction for sinking a well without a permit. The trial judge erred by classifying the appellant's property as 'Arazi Mirie' instead of 'Mulk,' a distinction the defense argued was material to the lawfulness of the well and water extraction. Consequently, the Court ordered a retrial before another judge to ensure a fair trial based on the correct property classification.
Regesto Legislator
Generato dall'IACriminal Procedure Act; Criminal Appeal Act: Where a trial court's error regarding the legal classification of immovable property materially affects the reasoning on the lawfulness of an activity, a retrial must be ordered to afford the accused a full opportunity to make their defense.
Parole chiave
Generato dall'IADisposizioni normative citate
Generato dall'IADecisioni correlate
Generato dall'IATesto completo
[*1777] 1973 December 28
(TRIANTAPYLLIDES, P, , Α. LOIZOU, MALACHTOS, JJ.) APPELLATE JURISDICTION
Maroulla Germanou,
Appellant,
v.
The District Officer Kyrenia,
Respondent.
(Criminal Appeal No, 3498).
Retrial - Well - Sinking well without permit - Error by trial Court regarding the category to which appellant’s property belonged - Such category allegedly of importance to the proper making of appellant's derence - Retrial ordered.
Well - Sinking well without permit - Retrial - See, also, under "Retrial".
L. Clerides with E. Lemonaris and T. Eliadeo, for the Appellant.
A. Prangos, Senior Counsel of the Republic, for the Respondent.
JUDGMENT
The judgment of the Court was delivered by:-
TRIANTAFYLLIDES. P. : The appellant has appealed [*1778] against her conviction in respect of the offences of sinking a well without a permit and of taking measures to utilize underground water from such well without the permission of the District Officer.
In the light of arguments heard till now in this appeal, it appears to us that the question of the category of immovable property to which belonged the property of the appellant (in which the well involved in these proceedings is to be found) before the enactment in 1946 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, affected to a certain material extent the reasoning of the learned trial judge.
It is now common ground that it was not a property of the "Arazi Mirie" category - as found by the trial judge in the light of the material before him - but of the "Mulk" category this has been ascertained, after the filing of the present appeal, by counsel for the respondent.
Counsel for the appellant has submitted that the error regarding the category to which the appellant's property belonged is a sufficient ground for ordering a retrial, as such category was treated by the trial court as related both to the lawfulness of the existence of the well concerned and of the drawing of water from such well. Counsel for the respondent has taken the very fair stand that, though he is prepared to argue that irrespective of the aforesaid error the conviction of the appellant on both counts ought to be affirmed, he will, nevertheless, not go [*1779] so far as to oppose strongly the contention that a retrial should he ordered; he left the matter to the Court.
We have decided that the better course would, indeed, he to order a retrial before another judge, especially in order to afford the appellant a full opportunity, in the interests of fair trial, to make her defence on the basis that her property in question was at the material time of the "Mulk" category, a fact which allegedly is of importance in so far as making her defence properly is concerned.
There is, therefore, made an order for retrial of the present case on the counts on which the appellant was charged and, of course, on any other additional or alternative count which may be added.
Appeal allowed. Retrial ordered.