Cassation
No. 410 of 2022
Issued
on 28/06/2022 (Penal)
Panel:
Presided over by Mr. Judge Ahmed Abdullah Al-Mulla, Chief Judge of the Circuit,
with Messrs. Judges Muhammad Ahmed Abdel Qader and Al-Tayeb Abdel Ghafour Abdel
Wahhab as members.
(1
- 4) Trial procedures: “Rules and procedures of the session: Investigation
and hearing witnesses.” Ruling: “Causation of the ruling:
Deficiencies in reasoning and breach of the right of
defence.”
(1)
The ruling shall provide assurance to the person perusing it that the court
comprehended the case's elements and addressed the meritorious defence.
(2)
In cases where the accused denies the incident, the court proceeds to hear
prosecution witnesses followed by defence witnesses, in accordance with Article
165 and 166 of the Criminal Procedure Law.
(3)
Penal rulings rely on pleading and oral investigation after hearing witnesses.
The omission of this process is subject to explicit or implicit waiver by the
parties involved.
(4)
The contested ruling dismissed the appellant's plea to hear both the complainant
and the defence witnesses cited in his memorandum. Consequently, it is
considered to have contained deficiencies in reasoning and breached the right of
defence.
1-
It is prescribed that the ruling shall inherently provide assurance to the
person perusing it, indicating the court's thorough consideration of the case's
elements and examination of the meritorious aspects of the defence, which may
change the formation of opinion in the case.
2-
It is also prescribed, as per the text of Articles 165 and 166 of the Criminal
Procedure Law, that if the accused refutes the alleged incident, the court is
obligated to hear the prosecution witnesses before proceeding to the defence
witnesses.
3-
It is established that penal judgments are grounded in the pleadings before the
same judge who issued the ruling and the oral investigations conducted during
the session after witness testimonies, whenever possible. Ignoring this
procedure is impermissible unless explicitly or implicitly waived by the
opposing parties.
4-
In light of the established facts, and whereas it is proven, pursuant to the
perusal of the documents, that the appellant asserted his innocence in the
memorandum before the Court of Appeal, and, on a provisional basis, requested
the court to hear both the complainant and the defence witnesses mentioned in
his memorandum. The contested ruling disregarded this pivotal request, which
warrants a court response as long as it does not result in acquittal.
Consequently, the contested ruling is deemed to have deficiencies in reasoning
and breached of the right of defence, necessitating its reversal with remand,
without the need for examining other grounds for cassation.
Whereas
in the facts, as apparent pursuant to the perusal of the contested ruling and
other documents, the Public Prosecution accused the appellant of stealing, on
9/9/2021, in collaboration with an unknown individual, a car described and
valued in the report, which belonged to the victim, with the intention of taking
ownership, as outlined in the documents.
The
prosecution sought punishment under Articles 45/1 and 443 of the Federal Penal
Code.
In
a session held on 1/2/2022, the court of first instance, in the presence of the
appellant, issued a verdict convicting him and imposing a one-month imprisonment
sentence for the charge. Additionally, the court ordered his deportation from
the country after serving the sentence.
Discontent
with the ruling, the appellant appealed the decision in Appeal No. 174 of 2022.
In
a session dated 15/3/2022, the Court of Appeal accepted the appeal in form but
rejected it on the merits and confirmed the appealed ruling.
Unsatisfied
with this outcome, the appellant filed the present appeal in cassation. The
Public Prosecution, in response, submitted a memorandum requesting the rejection
of the cassation.
The
appellant contends that the contested ruling breached the right of defence,
displayed deficiencies in reasoning and flaws in inference. The appellant
consistently denied involvement in the incident throughout the investigation and
before the court that issued the ruling. He maintained his plea for acquittal
and requested the court to hear both the complainant and the defence witnesses,
whose names were explicitly mentioned in his defence memorandum. The ruling,
however, overlooked these crucial points, failed to address them, and proceeded
to convict him, rendering it defective and necessitating its reversal.
Whereas
the objection holds merits, since
it is
prescribed that the ruling shall inherently provide assurance to the reader
regarding the court's thorough consideration of the case's elements and
examination of the meritorious aspects of the defence, which may change the
formation of opinion in the case.
It
is also prescribed, as per the text of Articles 165 and 166 of the Criminal
Procedure Law, that if the accused refutes the alleged incident, the court is
obligated to hear the prosecution witnesses before proceeding to the defence
witnesses
.
It is
established that penal judgments are grounded in the pleadings before the same
judge who issued the ruling and the oral investigations conducted during the
session after witness testimonies, whenever possible. Ignoring this procedure is
impermissible unless explicitly or implicitly waived by the opposing
parties.
In
light of the established facts, and whereas
it is
proven, pursuant to the perusal of the documents, that the appellant asserted
his innocence in the memorandum before the Court of Appeal, and, on a
provisional basis, requested the court to hear both the complainant and the
defence witnesses mentioned in his memorandum. The contested ruling disregarded
this pivotal request, which warrants a court response as long as it does not
result in acquittal. Consequently, the contested ruling is deemed to have
deficiencies in reasoning and breached of the right of defence, necessitating
its reversal with remand, without the need for examining other grounds for
cassation.