An appeal is allowed only on points of law and the court of appeal does not go into issues of evidence evaluation
The maxim that no person can be prosecuted a second time for an offence for which they have already been acquitted or convicted, which is a basic human right and fundamental freedom, is provided for in Article 12.2 of the Constitution and given effect in Article 137(1) of the Criminal Procedure Law, Cap.155.
Specifically, the attorney-general may appeal or authorise an appeal from an acquittal by an assize or district court on any of the following grounds: (i) there was no evidence upon which the court could reasonably find a fact or facts necessary to support such a decision; (ii) evidence was improperly admitted or excluded; (iii) the law was improperly applied; and (iv) there was an irregularity in proceedings. Only within these very strict conditions can the court of appeal assume jurisdiction and review the correctness of the trial court’s decision to acquit an accused and it does not consider findings relating to the evaluation of the evidence. This is because the court of appeal does not consider allegations and evidence from the beginning as a trial court.
The Board of Registration of Estate Agents found upon inspection by an officer that offences were allegedly committed in contravention of the Real Estate Agents Law of 2010, L.71(I)/2010, concerning the practice and promotion of the profession of an estate agent by persons allegedly not registered with the board and without a valid licence. In addition, they were allegedly engaged in the promotion of a real estate transaction while not being registered as real estate agents.
The trial court acquitted and discharged them from the charges they were facing, since, after evaluating the evidence, the court did not accept the testimony of the officer nor the interpretation of evidence provided. The board appealed raising points of law relating to the irregularity of the proceedings. It held that the trial court erred in concluding that the accused were confused and their rights affected and that the indictment was defective.
The Supreme Court examined the appeal in the context of its decision in Cr.A.190/2021, dated January 19, in which the above facts and data are mentioned, considering the appeal admissible with regard to the legal points, but inadmissible with regard to the results of the evaluation of the evidence. On the basis of the facts evaluated by the trial court, it concluded that the board failed to prove its case against the accused persons and consequently stated that they were acquitted.
After referring to Article 137(1) of Cap.155, the Supreme Court examined the admissibility of the appeal against the acquittal and adopted the relevant case law stating that however strongly the argument is elaborated in support of the wrongful findings of the trial court, it cannot be examined unless it is held that the appeal is admissible. It further states the fulfilment of the stringent conditions of Article 137(1) is a condition for the court of appeal to assume jurisdiction, so as to enable it to review the correctness of the decision of the trial court. Irrespective of how valid the appellant’s arguments may appear to be jurisdiction still cannot be assumed, and if the appeal ends in challenging the findings of the trial court, it does not deal with points of law. In addition, it states that it should be excluded from attempting to challenge and evaluate the evidence which fall outside the scope of this article.
The Supreme Court accepted the points of law raised by the board about the erroneous conclusion of the trial court that the accused were confused and their rights affected, since they never raised such an issue at any stage of proceedings. The trial court’s finding that the accused were misled was also incorrect, without adequate reasons being given for misleading them, but it reiterated that they never asked the board for details, apparently because they knew exactly what they were up against. Consequently, it considered that the trial court’s conclusion that the indictment was defective and cause for dismissal was incorrect.
However, the Supreme Court held the appeal to be inadmissible in respect of the assessment’s evidence outcome that it was brought before the trial court, since it effectively challenged the findings of the trial court which were beyond the scope of Article 137(1)(a). Based on these grounds of appeal, the board was in effect inviting the court of appeal to examine the allegations and evidence as a trial court from the beginning.
George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]