Court allows joinder of conspiracy and accessory charges but orders amendment to specify the underlying felony details.

[*222] 1977 June 20

(ARTEMIS, D.J.)

IN THE DISTRICT COURT OF LARNACA

Police

v.

Argyros Kyriakou and Others,

Accused.

(Case No. 4229/77).

Criminal Procedure - Charge - Statement of offence - Accessory after the fact to the commission of a felony - Contrary to sections 23, 24 and 20 of Cap. 154 - Whether specific reference to the felony should he made in the statement of offence - And whether conviction of principal felon a prerequisite to the bringing of the charge.

Criminal Procedure - Counts - Joinder - Count for conspiracy joined with count for substantive offence - Evidence may not be such as to prove the substantive counts - All accused charged on both counts - No possibility of the existence of evidence admissible in respect of some accused while inadmissible for others - Number of counts very small - No prejudice will be caused to accused and it would be in the interests of justice to try the two counts together.

Criminal Procedure - Charge - Further particulars.

S.I. Charalambous, for the Prosecution.

G. Georghiou, for the Accused.

RULING

The following ruling was delivered by: -

ARTEMIS, D.J.: Before plea the accused [*223] raised certain preliminary objections to the charges they face on which argument was heard by both sides and the Court has the task at this stage to rule on the objections.

The charges brought against the accused are:-

(a) That they conspired to receive Kyriakos Kouppis with intent to assist him to evade punishment, knowing that he was guilty of premeditated murder; and

(b) that they actually received the alleged felon contrary tos.23 ofCap.154.

Does the statement of offence in count 2 disclose any offence?

The first objection taken was that, in respect of count 2,the charge was bad in law as it did not disclose the existence of any offence.

The Statement of offence in that count reads:-

###

(Translation: "Accessories after the fact to the commission of a felony contrary to ss.23,

24 and 20 of the Criminal Code, Cap.154").

I therefore take it that the objection refers to the non-inclusion in the Statement of any reference to the specific felony, i.e. premeditated murder.

In the case of Quintner. 25 Cr. App. R.32, the Statement of Offence was in the following terms: "Accessory [*224] after the fact". In the particulars reference was made to a felony. Though the report is not very clear it appears that it was held that the count was had in that it omitted in the Statement of Offence to specify the felony. This, with respect, is apparently a correct decision as the term "accessory after the fact" does not disclose any offence. At the time the judgment was given there was only the definition of who is an accessory after the fact at Common Law and the provisions of ss.3 and 4 of the Accessories and Abettors Act, 1861, as to the manner of charging accessories after the fact and the punishment. Now, by s.4(l) of the Criminal Law Act, 1967, the offence of assisting an offender has been created by statute. The form of indictment for this offence appears in Archhold 39th Ed. para. 4150 and it reads:

"STATEMENT OF OFFENCE

Assisting offender, contrary to s.4(1) of the

Criminal Law Act, 1967".

The particular offence of the principal offender is described in the Particulars of Offence.

It is therefore plain that as a distinct offence is created hy this section, so long as reference to the section is made in the Statement of Offence, it is not necessary to specify the offence of the principal offender therein, so long as particulars of it are given thereafter in the Particulars of Offence.

Our s.23 similarly provides for the offence of receiving or assisting a felon and on the same reasoning I [*225] find that specific reference to the felony need not be made in the statement of offence and, so long as the section is specified, an offence is disclosed.

If the objection refers to the use of the words ### (accessory after the fact) instead of "receiving a felon" I have the following to observe:

The use of any particular words carries no magic and any term which adequately drives home to the accused what they have to face is sufficient. As it is the practice, the prosecution have, in the present case, used the terminology of the marginal note of s.23 of Cap.154, and this, in combination with the particulars given thereafter make it abundantly clear to the accused what they are charged with.

In the light of the aforesaid this objection of the defence is dismissed.

Are the charges "premature"?

Learned counsel for the defence has also submitted that the charges are "prematurely" brought. He argued that there must first be a conviction of the principal felon and inasmuch as the principal felon in this case has appealled against his conviction and his appeal is still pending, there is no final decision as to his conviction. Therefore, he argued, the appeal should have been decided and then the present charges preferred.

Whether the conviction of the principal felon is a prerequisite goes directly to the interpretation of the [*226] provisions of s.23 and directly touches upon the question of what is one of the ingredients of the offence.

There is no time limit set by the law or any condition precedent to the institution of proceedings so as to decide whether the charges are premature. In my view it would he totally wrong to determine at this early stage what the ingredients of the offence are; moreover this would he also impossible, as, at present, there is no evidence before the Court as to any conviction or appeal of the principal felon on which to base any ruling. The objection, not being a formal one to the charges, can be raised at any stage and the proper stage to he raised is after the evidence has been adduced, in the final address, when the court will be called upon to interpret the law and make its findings on the evidence. In the result I shall refrain from expressing any view on the matter which must be raised and decided at the proper stage.

Should the Court direct that the conspiracy count be tried separately from the count charging the substantive offence?

This was the next submission by the defence who object to the joinder of the offences alleging that this would be prejudicial to the accused.

It is generally accepted that the joining of a conspiracy charge with a count or counts for substantive offences is an undesirable practice which can cause hardship to the accused (see R. v. Dawson, R.V.Wenlock (1960) 1 All E.R. 581). There are not, however, any rigid rules to apply when deciding whether a conspiracy count is properly [*227] included and each case must he considered on its own facts (see R. v. Jones and Others (1974) 59 Cr. App. R. 120, C.A.).

The general principles are set out in Archhold, 39th Ed., para. 4073.

There are cases where this course is not only unobjectionable hut it is called for in the interests of justice (R. v. Meyrick etc., 21 Cr. App. R. 94; Dawson's case, (supra)),

As regards the prejudice that may he

caused by the reception of evidence on a conspiracy count which evidence may he inadmissible on a substantive count, there should be no

exaggeration in Cyprus as the judges who try criminal cases have the legal training to enable them to draw the line where necessary.

In this case the prosecution have explained that the reason for joining a conspiracy charge is that their evidence may not be such as to prove the substantive count. Bearing this in mind along with the fact that all accused are charged on both counts and, therefore, there is no possibility of the existence of evidence admissible in respect of some accused while inadmissible for others, and the number of counts which is very small, I feel that no prejudice can be caused to the accused and it would be in the interests of justice to try the two counts together.

Further Particulars.

The defence have finally asked for further particulars on count 2. Section 20 is included in this count and the

defence [*228] want to know which accused is alleged to have committed the actual acts constituting the offence and what is alleged to be the participation of the

others. The Prosecution stated in Court that all paragraphs of s.20 are applicable for all accused. To give further particulars would be tantamount to giving the defence particulars of the law at a time when s.20 provides that all categories of persons

described therein can be charged as actual offenders. The particulars given, i.e. that the accused received the felon with Intent to afford him the possibility to evade punishment are

sufficient, in conjunction with the inclusion of reference to s.20, to make accused realise what they have to face. Therefore no particulars need be given on this score.

However, I would like to point out that the felony in the Particulars of Offence should be always described with meticulous particularity and this count is lacking in this respect: The name of the victim of the alleged murder, the date and the place it was allegedly committed should have been included in the Particulars of Offence. Therefore, pursuant to the powers given to me by s.83(l) of the Criminal Procedure Law, Cap.155 I direct that the charge be amended accordingly, the relevant particulars to be given to me at this stage by the prosecution. This having been done, the accused will be required to plead to the charges.

Order for the amendment of the charge.