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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1961) 1 CLR 295
1961 June 20
O' BRIAIN, P., ZEKIA, VASSILIADES and JOSEPHIDES, JJ.]
COSTAS P. ANTONI,
Appellant,
v.
CHRISTO LOIZOU OF EPTAGONIA, TREASURER
OF THE COMMITTEE OF EPTAGONIA
IRRIGATION DIVISION (KOUMENES SPRING)
REPRESENTING THE OWNERS THEREOF,
Respondents.
(Criminal Appeal No. 2367)
Criminal law-Act done in the exercise of a bona fide claim of right-The Criminal Code, Cap. 154, section. 8-Complete defence as distinct from that of mistake of fact under section 10.
By section 8 of the Criminal Code "a person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud". On the other hand section 10 provides: "A person who does or omits to do an act under an honest and reasonable, but mistaken, belief, in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist..."
The appellant was charged with interfering with the Irrigation Works of Eptagonia Irrigation Division contrary to the Irrigation Divisions (Villages) Law, Cap. 342, section 38(2)(b) and the Eptagonia Irrigation Division (Koumenes Spring) Regulation, 1954, reg. 12(1) (c). The defence put up was that the appellant had done the act charged in the honest exercise of a bona fide claim of right. The trial judge dealt with that defence as though it were a defence of an honest mistake of fact under section 10 of the Criminal Code, and, having held that in this case the alleged mistake was not one of fact but of law, convicted the appellant as charged. The High Court reversing that judgment:
Held: (1) On the evidence before the trial Judge the accused had a complete defence to the charge under section 8 of the Criminal Code.
(2) The trial judge failed to direct his mind to the provisions of section 8 and dealt with the defence thereunder as though it were a defence under section 10.
Appeal allowed. Conviction quashed.
Appeal against conviction.
The appellant was convicted on the 13.4.61 at the District Court of Limassol (Criminal Case No. 2010/58) on one count of the offence of interference with the Irrigation works of Eptagonia Irrigation Division (Koumenes Spring) contrary to Eptagonia Irrigation Division (Koumenes Spring) Regulations, 1945, section 12(1)(c) Cyprus Gazette, Supplement No. 3 dated 28.6.45, p. 159 Irrigation Divisions (Villages) Law, Cap. 111 sec. 38(2)(b) and was sentenced by Orphanides, D.J. to £2 fine or 10 days' imprisonment and £13 costs or 2 months' imprisonment (sentence commencing on 13.4.61, with two months' stay of execution).
J. Potamitis for the appellant.
Pl. C. Solomonides for the respondent.
The judgment of the Court was delivered by:
JOSEPHIDES, J.: In this case the appellant was charged with interfering with the Irrigation Works of Eptagonia Irrigation Division (Koumenes Spring), contrary to the Eptagonia Irrigation Division (Koumenes Spring) Regulations, 1945, regulation 12(1)(c), and the Irrigation Divisions (Villages) Law, Cap. Ill, section 38(2)(b) (now Cap. 342).
The defence put up by the accused was that he had a bona fide claim of right, within the provisions of section 8 of the Criminal Code, and evidence for the prosecution and the defence was heard by the trial Judge. In the course of his judgment the Judge purported to deal with that joint, but, in fact, he dealt with that defence as though it were a defence under the provisions of section 10 of the Criminal Code.
Mr. Potamitis in his address to the Court (at page 22 of the record) stated that the accused destroyed the ditch in dispute, which was in his own land, on the assumption that the said ditch was his property, that is, that the act was done by the accused in the exercise of an honest claim of right.
The Judge, in dealing with that question in his judgment (at page 25 of the record) stated, "It was also in effect argued by the defence that what the accused did he did so under a mistake of fact. But the evidence shows that if there was a mistake on the part of the accused it was a mistake of law and not of fact. And mistake of law is not an excuse".
On reading section 10 of the Criminal Code one understands that the Judge had that particular section in mind, and that he failed to direct his mind to the provisions of section 8.
On the evidence before the trial Court we are satisfied that the accused had a bona fide claim of right to the ditch in question, which was in his own land, and that is a complete defence to the charge.
On that ground, the appeal is allowed and the conviction quashed. The respondents are ordered to pay to the appellant the costs of this appeal.
Appeal allowed. Conviction
quashed.