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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1961) 1 CLR 440
1961 December 12
[O'BRIAN, P., ZEKIA, VASSILIADES AND JOSEPHIDES, JJ.]
GEORGHIOS TH. KALLI (No. 2)
Appellant,
v.
THE REPUBLIC,
Respondent.
(Criminal Appeal No. 2445).
Criminal Law-Murder-The Criminal Code, Cap. 154, sections 204 and 205, as they stood prior to the amending law No. 3/62-Premeditated murder-Sentence of death-Article 7, paragraph 2, of the Constitution-No conflict between section 205 to the extent to which it provides for the death penalty for cases of premeditated murder and the Constitution.
Evidence in criminal cases-The trial Court are entitled to use against the accused any evidence pointing to his guilt, which in their view is true, be it evidence of the accused himself or of his witnesses.
The appellant was convicted by the Assize Court of the premeditated murder of one Andreas Kyriacou and was sentenced to death. The body of the deceased was found at a remote and lonely spot with two gun-shot wounds inflicted at close range and which were both fatal. The wounds precluded the possibility of the deceased having caused both wounds with the "pistola" which was produced in Court. On the other hand there was evidence that the accused discharged the "pistola" causing the two wounds. The accused at different times gave accounts differing significantly in detail of what happened between him and the deceased. There was evidence about motive. The appellant after the shooting took the "pistola", wrapped it up carefully in a plastic bag, tied the bag and put it away in a secret place and according to his explanation he did that to avoid its destruction by earth. The appellant said to the police that "he did it (the murder) for his honour".
One of the grounds of appeal was that Article 7, paragraph 2, of the Constitution required a law which should provide expressly for the death sentence in case of premeditated murder and since no such law was enacted at that time the sentence of death was illegal and /or invalid and/or of no effect.
Held: (1) There was sufficient evidence to justify the conviction.
(2) (a) Section 205 of the Criminal Code as enacted provided in express terms for the penalty of death in all cases of murder.
(b) The decision of the Supreme Constitutional Court in the case of Loftis (Application No. 8/61) is to the effect that "section 205 of the Criminal Code, Cap. 154, to the extent to which it provides for death penalty for murder other than premeditated was inconsistent with Article 7, paragraph 2, of the Constitution".
(c) In so far as the section provides that any person convicted of premeditated murder shall be sentenced to death, no conflict, with the Constitution arises and in that sense the section is not unconstitutional.
(3) The trial Court is entitled to use against the accused any part of his evidence which in their view is true and points to his guilt.
Appeal dismissed.
Conviction and sentence affirmed.
Cases referred to:
The Republic and Nicolas Pantopiou Loftis, Application No. 8/61, 1 R.S.C.C. 30;
Loftis v. The Republic, reported in this volume, p. 108 ante;
Mancini v. D.P.P. (1941) 3 All E.R. 272;
Woolmington v. D.P.P. 25 Cr. App. R. 72;
R. v. Steane (1947) 1 All E.R. 813;
R. v. Hopper 11 Cr. App. R. 136.
Appeal against conviction.
The appellant was convicted on the 20th November, 1961 at the Assize Court of Kyrenia (Criminal Case No. 1350/61) on one count of the offence of murder contrary to sections 204 and 205 of the Criminal Code, Cap. 154, read in conjunction with Article 7, paragraph 2, of the Constitution and was sentenced by Stavrinides, P.D.C., Evangelides and Ioannides, D.JJ. to death.
L. Clerides with K. Saveriades for the appellant.
A. Frangos for the respondent.
Cur. adv. vult.
The facts sufficiently appear in the judgment of the Court which was delivered by:-
O' BRIAIN, P.: in this case the appellant was convicted by the Assize Court of Kyrenia of the premeditated murder on the 9th day of July, 1961, of one Andreas Pavlou Kyriacou, and was sentenced to death for the said crime. His appeal to this Court against that conviction is based on eight grounds.
Ground 1 raises a matter of law of considerable importance and is in the following terms:
"That in the absence of the enactment of a Law as provided for in Article 7.2 and 3 of the Constitution the sentence of death passed on the appellant on a count of premeditated murder is illegal and/or invalid and/or of no effect".
The information put on the record of the Assize Court was in the English language and in, the following terms:
"Statement of offence".
"Premeditated murder contrary to sections 204 and 205 of the Criminal Code, Cap.154 read in conjunction with Article 7, para. 2, of the Constitution".
"PARTICULARS OF OFFENCE: The accused on the 9th day of July, 1961, at locality "Landa tou Shirou' in the territory of Ayios Amvrosios in the District of Kyrenia, did of malice aforethought amounting to premeditation, to wit, an intention to kill, cause the death of one Andreas Pavlou Kyriacou, of Khartzia by an unlawful act, to wit by shooting".
The argument of Mr. Clerides was that Article 7(2) of the Constitution requires "a law which should provide expressly for the death penalty in cases of premeditated murder" and he submitted that no such law has been enacted by the Legislature of the Republic and consequently the sentence of death passed on the appellant was illegal and/or invalid and/or of no effect. The Court is unanimously of opinion that this argument is based on a. misconception and that this ground of appeal is of no substance. In our opinion, the Criminal Code, section 205, as enacted provided in express terms for the penalty of death in all cases of murder. That Statute was enacted in the year 1929. The Constitution of Cyprus came into effect on the 16th August, 1960, and Article 7, paragraph 2 thereof provided as follows:
"No person shall be deprived of his life except in the execution of a sentence of a competent court following his conviction of an offence, for which this penalty is provided by law. A law may provide for such penalty only in cases of premeditated murder, high treason, piracy jure gentium and capital offences under military law".
The constitutionality of section 205, having regard to Article 7, paragraph 2, of the Constitution, has been referred by this Court to the Supreme Constitutional Court and was considered by them in the case of Nicolas Pantopiou Loftis, Application No.8/61, (The Republic and Loft is 1 R.S.C.C. 30). The decision of the Supreme Constitutional Court on the question reserved is perfectly clear. It is to the effect that "Section 205 of the Criminal Code Cap.154 to the extent to which it provides for the death penalty for murder, other than premeditated murder, was (sic) inconsistent with Article 7(2)". But it is clear from the judgment delivered by Fortshoff, P., that, in so far as the section provides that any person convicted of premeditated murder shall be sentenced to death no conflict with the Constitution arises and that, in that sense, the section is not unconstitutional. In my view this is a complete answer to the first ground of the appeal.
In this connection I may say that the Court has observed that Counsel appearing for the Republic appears to have difficulty in deciding how properly to frame the count for premeditated murder and that in different cases widely differing forms have been used. It may be of assistance to the Bar generally if we were to indicate that in our view at present and until such time as hew legislation on the point shall be enacted, a count in the following lines will suffice: "Statement of Offence. Murder contrary to sections 204 and 205 of the Criminal Code, Cap. 154".
"Particulars of Offence. The accused did on the.day of. at. of malice afore thought and with premeditation kill A.B." This English terminology will also conform as closely as possible to the terminology of the Greek and Turkish texts of Article 7, paragraph 2, of the Constitution where the words "φόνος" and "Katil" are used respectively, where the English text uses "murder".
The second ground of appeal is set out in terms which we have had difficulty in understanding. It reads:
"The Hon. Court has failed to apply the principles laid down in the cases of:
Mancini v. D.P.P. (1941) 3 All E.R. 272.
Woolmington v. D.P.P. 25 Cr. App. R. 72.
R. v. Steane (1947) 1 All E.R. 813.
R. v. Hopper 11 Cr. App. R. 136.
as regards the sufficiency of evidence and/or the burden of proof required under the circumstances".
Mr. Clerides argued that the judgment of the court shows that the learned Judges tried the case as they would a civil case and gave their verdict upon the preponderance of probabilities. We have carefully read, more than once, the entire judgment and fail to find any justification for this grave and far reaching criticism of the conduct of the trial judges. It has already been laid down by this Court, in a recent case, that this Court will impute to the Judges a full and accurate knowledge of the law, unless the contrary appears upon the record. In this case three experienced members of the Judiciary, though they had differed on a point of law during the course of the trial were unanimous in convicting and used these words in the second last paragraph of their judgment -
"having carefully and anxiously considered every aspect of this grave case, we are satisfied that the accused arranged."
We reject entirely the contention of Mr. Clerides that because they did not add after the words "satisfied" the phrase "beyond any reasonable doubt" this shows that they fell into the fundamental error of trying a charge of premeditated murder, carrying with it the penalty of death, on the same footing as an action arising out of a street collision or for a shop goods debt.
The remaining six grounds of appeal may conveniently be dealt with together as they relate to details of evidence, findings of fact and inferences to be drawn from them. We have listened with attention to what Mr. Clerides has urged in support of these grounds. We think we can best answer and deal with all his submissions by stating briefly what appears to have been established to the satisfaction of all three trial judges upon evidence properly admitted and in a case where we have failed to find any misstatement of law in the judgment or in the rulings made by the Court in the course of the trial. In this connection I would emphasize that the accused chose to call evidence and: to give evidence himself upon oath. There is no doubt that the trial court was entitled to use against the accused any part of that evidence which in their view was true and pointed to his guilt.
The salient facts may be summarised briefly as follows:
The body of the deceased young man was discovered on the 11th July last at a place called "Landa tou Shirou", a remote and lonely spot between the villages of Ayios Amvrosios and Khartzia. He lay on his back and had apparently been dead for some time. Two gunshot wounds inflicted at close range were found on the body; one was caused by pellets hitting the deceased in the area of the sternum (breast bone), from the sternum to the jaw, and the other a frightful wound in the back of the head involving the deep tissues of the brain was caused by jagged pieces of metal which had been filled into a cartridge in place of pellets. Either of the wounds of itself would have caused almost instantaneous death. Both were fired from the "pistola" produced in Court. The fact that the body bore two fatal wounds precluded the possibility of the deceased having caused both with that "pistola". One, the first, in point of time, might have been caused by the deceased if the deceased had the "pistola" and in a struggle with another person accidentally or otherwise discharged it hitting himself. This matter was considered by the trial court. The main evidence on the point was that of the accused himself. We now know from him that he alone was present at the spot with the deceased when the deceased met his death. We know, too, that he used the weapon that caused both these wounds, though he only admits firing the second of the two shots and then for the purpose of self-defence. At different times he gave accounts differing significantly in detail, of what happened between him and the decased. Some are statements to the Police, one a conversation with his own mother and the last on oath in the witness box. With regard to this account and the defence based upon it the learned Judges have this to say -
"We are satisfied.that the deceased neither attacked nor provoked the accused at any time between his leaving Khartzia and his death; that.the accused shot the deceased with the "pistola" twice and that the deceased died as a result of such a deliberate attack on him by the accused".
This, if it means anything, means that the deceased was murdered and that his slayer was the accused and that his evidence exculpating himself was rejected by all three judges.
There still remains to be considered the question of premeditation. There was evidence of motive on the part of the accused to attack the deceased. He, the accused, had become engaged to a young girl in the deceased's village. He had seduced her and then found she was not virgo intacia and was told, as a result of enquiries he made of her, that she had been raped by the deceased. It has been suggested by Mr. Clerides that that would scarcely be likely to cause resentment towards the deceased on the part of the accused. I can only say for myself that I can hardly conceive of any matter more likely to lead to violence between two young men circumstanced as were the accused and the deceased. The matter does not rest there. There is no evidence that the deceased ever owned a firearm. It is true that there is no direct evidence that the accused owned the "pistola". One or other of them brought the "pistola" on the fatal evening to "Landa tou Shirou" and with it the ammunition which I have described. The accused, on his own admission, loaded it and used it at least once, firing on that occasion at the head of the deceased and inflicting the head wound which I have mentioned.
After the murder he takes the "pistola," carefully wraps it up in a plastic bag, ties or binds the bag, puts away the weapon in a secret place. Later he brings the Police to where the gun is and says to the Police Officer
"This is the gun, Sir, which I wrapped up to avoid its being destroyed by earth".
Can one wonder that the Court drew the inference that that was the act of an owner dealing with his own property? if the "pistola" that was brought to 'Landa tou Shirou' and slew the deceased on that fatal evening was in truth the gun of the accused, what is left of his case that this was not a planned murder? One final piece of evidence requires mention. To the Police Officer he used a significant phrase-"in any event Mr. Frangos, what happened was on account of my honour". To his mother his opening words were "I did it for my honour. If he was not killed I would have been killed". These facts, each of them, in our view, supported by legal evidence, justified the trial Judges who had the duty and function of judging of the credibility of witnesses and ascertaining the facts and drawing inferences from proven facts in coming to the conclusion, as they did, that Andreas Pavlou Kyriacou was shot down by the accused with the "pistola" that was produced in evidence; that he, Andreas Pavlou Kyriacou, was neither attacking nor provoking the accused and that the latter had acted with deliberation to avenge what he believed had been done to Panayiota Andreou who, on the admission of the accused himself, was the object of his lust.
We dismiss this appeal and affirm the verdict and sentence of the trial court
Appeal dismissed. Conviction and
sentence affirmed.