The maxim, which is a basic human right and a fundamental freedom that no person shall be prosecuted a second time for the same offence for which he has been acquitted or convicted, is provided for in Article 12.2 of the Constitution and is given effect in Article 137(1) of the Criminal Procedure Law, Cap.155. Specifically, it is provided that the Attorney General may appeal or authorise an appeal from an acquittal by an Assize Court or District Court on any of the following grounds: (i) that there was no evidence upon which the Court could reasonably find a fact or facts necessary to support such decision; (ii) that evidence was improperly admitted or excluded; (iii) that the law was improperly applied to the facts; and (iv) that there was an irregularity in the proceedings. Only within these very strict conditions the Court of Appeal can assume jurisdiction and review the correctness of the trial Court’s decision to acquit and discharge an accused and it does not consider findings relating to the evaluation of the evidence. The admissibility of an appeal from an acquittal is limited to examination of the above points of law and does not consider findings of fact by the trial Court. 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 who were allegedly not registered with the Board and did not have a valid annual licence. In addition, they were allegedly engaged in the promotion and/or advertising of a real estate transaction concerning real estate while not being registered as real estate agents.

An indictment was formulated against them and the trial Court, after a hearing, acquitted and discharged them from the charges they are facing, since, after evaluating the evidence, the Court did not accept the testimony of the Board’s officer nor the interpretation of the evidence he provided. The Board appealed the judgment raising points of law, relating to the irregularity of the proceedings, that the trial Court erred in concluding that the accused were confused and their rights were affected, and the conclusion of a defective indictment capable of leading to a dismissal of the case.

The Supreme Court examined the appeal of the Board of Registration of Estate Agents in the context of its decision in Cr.A.190/2021, dated 19.1.2023, 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. The Court referred to the facts and background of the case and that the accused persons denied their guilt, therefore a hearing took place. 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 it stated that they were acquitted and discharged of the charges.

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 on the issue 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 indeed admissible. It further states that 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 persons were confused and their rights were affected, since they never raised such an issue at any stage of the proceedings. The trial Court’s finding that the accused persons 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 capable to lead to a dismissal of the case 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.