The Supreme Court in the recent judgment in the case of Theodorou M. Ioannidi –v- 1.Gastop Boutique Ltd and others (Appeal No. 161/2014), decision dated 30th of June 2017 adjudicated on a significant matter, which relates to the mens rea of an accomplice as per Article 20 of the Criminal Code, Cap 154. The First Instance Court had found innocent Defendant No.2 in the second charge based on the fact that Defendant No.2 during the issuance of the cheque, did not have the intention of it being unpaid. On the other hand the Company was found guilty on the basis of Article 305A of the Criminal Code.
Without going into detail as to the facts and the judgment of the case since it can be allocated on http://www.cylaw.org/ , reference shall be made as to the finding of the Supreme Court as regards Defendant No.2 since she was charged under her capacity as the director of Defendant No.1 company, and that she had assisted and motivated Defendant No.1 to issue the cheque which was returned unpaid (bounced cheque). The charge against Defendant No.2 is based on Article 20 of the Criminal Code and namely on Section 20(c) which provides that the person who provides assistance to another or who motivates the other to commit an offense, is considered as one who takes part in the commission of the criminal offense, and to be guilty for this and can be prosecuted as an accomplice.
Turning now to the reasoning of the Supreme Court regarding the personal criminal liability of Defendant No.2 (under her capacity as director of Defendant No.1 company) it has been stated that:
(i) The First Instance Court came to the finding that it was not proven that Defendant No.2 during the time of issuance and providing the cheque has the intention that the cheque remains unpaid. Defendant No.2 did not have any engaging in the financial management of Defendant No.1 company, whilst on the other hand she had proceeded to issue the cheque in question after obtaining confirmation from her husband that the cheque would be paid. These had been facts which showed the intention of the Defendant No.2 for the payment of the cheque.
(ii) The Supreme Court disagreed with the above finding of the First Instance Court and had analyzed the above issue with reference to both English case law and textbooks as well as other Cypriot court judgments. In brief it had decided that Defendant No.2 with full knowledge of the material facts during the material time of the issuance of the cheque, and with recklessness as to whether the cheque which she had signed would be proceeded when presented for payment, and relying solely on an indefinite and non-binding promise from her husband, provided ultimately assistance to the Defendant No.1 company to commit the offense under Article 305A and therefore was found guilty of the charge of an accomplice under Article 20(c) of the Criminal Code.
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Mrs. Nada Starovlah (email@example.com) at SOTERIS PITTAS & CO LLC,
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