1. AZIZDERVISH, 2.ZIA DERVISH ν. REX. (V18) 1 CLR 25 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup
- on)- Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V18) 1 CLR 25 1942 July 7 [CREAN, C.J., AND HALID, J.] 1. AZIZ DERVISH 2. ZIA DERVISH, v. Appellants, REX, Respondent. (Criminal Appeal No. 1754.) Criminal Law-Murder-Common design-Cyprus Criminal Code, section 22-Inference from facts as to existence of plot. During a quarrel, in which the appellants took part, the deceased was stabbed by some one and died. The Assize Court came to the conclusion that the appellants with another person had formed a common design to murder the deceased, and that the appellant Aziz stabbed the deceased. The appellant Zia struck deceased with a walking stick on the shoulders, but the injuries caused by these blows were unimportant. Held: (
- i)The law of Cyprus with regard to common intent to prosecute an unlawful purpose as set out in section 22 of the Cyprus Criminal Code is the same as the English Law except that it makes no distinction between a felony and had a misdemeanor. (
- ii)If there is a common design to assault a person with walking sticks, the killing with a knife is not a natural consequence of that common design to assault and therefore the act of the appellant Zia did not come within section 22 of the Criminal Code and render him liable for murder. Appeal from the Assize Court of Nicosia. S. G. Stavrinakis with Hakki Suleiman for the appellants. S. Pavlides, Solicitor-General, for the respondent. The facts of the case are set out in the judgment of the Court which was delivered by: CREAN, C.J.: On the 28th of May last Aziz Dervish, Zia Dervish and Ali Moustafa Kanaria were charged before the Assize Court in Nicosia with the murder of Ioannis Christodoulou, a forest guard in the Lefka district. All of them pleaded not guilty to the charge, and immediately after these pleas were recorded the Crown entered a nolle prosequi upon the charge as to Ali Moustafa Kanaria whereupon he was discharged and called as the first witness for the prosecution against Aziz and Zia, the other two accused. Both these men Aziz Dervish and Zia Dervish were found guilty of the murder of Ioannis Christodoulou and sentenced to death. The evidence shews that Aziz Dervish is a man of 25, that he is a contractor and has worked for the Cyprus Mines Corporation for the last 8 years. Zia Dervish is a brother of Aziz. He is 23 years old and worked as a carrier in his district. The facts of the case as shewn by the record are shortly these: On the 10th of April last Aziz Dervish, who is accused 1 in the case, and his brother Zia, who is accused 2, had their evening meal in the restaurant of one Halil in Lefka with two of their friends Ali Djevat and Salahi, and at that meal they drank a bottle of brandy between them. When they had finished their meal and were about to leave this restaurant Ali Moustafa Kanaria, who was accused 3 in this case prior to the nolle prosequi, came along and suggested to Zia that they should go out wood cutting on the following day. The three of them went to the caf? of one Moustafa where Aziz, the accused 1, had an orange which, he says, was already cut, so that he had no need to use a knife in eating it. The other two had coffee. The accused say they talked about summonses which had just been served on Zia and Ali Moustafa Kanaria for forest offences, and as they were all illiterate they wanted to know the dates of the hearing of these summonses and so decided to go to Yanni's coffee-shop and see the deceased forest guard Ioannis Christodoulou to get information from him about them. Aziz, the accused 1, knew that one Petrakis whom be wanted to see was there and suggested they should all go together. They went, and Aziz spoke to his friend Petrakis who was there. Zia, the accused 2, almost immediately after his entry into the cafe, struck the deceased forest guard with a walking stick on the shoulders. The Court does not find he was struck on the head. The blows cannot have been struck with any great violence as the injuries caused by them, according to the medical evidence, were unimportant. Ali M. Kanaria struck Demos, another forest guard, with a stick and evidently with some violence as it knocked Demos down and stunned him. During this quarrel Ioannis Christodoulou was stabbed by some one, and died 3 days later in the Pendayia Hospital from hypostatic pneumonia following the stab wound. The case for the prosecution rested firstly on the statement of the deceased, that Aziz, the son of Dervish, had stabbed him in the cafe, made immediately after he was stabbed and repeated by him in a deposition he made in the hospital shortly before he died. Secondly on the evidence given by Ali Moutafa Kanaria who said that he saw Aziz with his left hand take hold of deceased by the chest and stab him with a clasp-knife which he (Aziz) was carrying in his belt at the time he entered the cafe. And generally on the circumstances surrounding the killing. The defence of Aziz is that he had no complaint against the deceased, that he did not stab him, that he had not a knife with him, and did nothing wrong on this particular evening. And evidence is given by witnesses for the defence that Ali Moustafa Kanaria admitted it was he (Kanaria) who stabbed the deceased. The defence of Zia is that the deceased was unciviI to him when he asked about the summonses for forest offences and admits striking him with his stick. And as the medical evidence proves the injuries caused by these blows were unimportant this accused Zia could not be found guilty of murder unless it were proved that there was a common design formed by him and his co-accused for an unlawfuI purpose and in the carrying out of that unlawful purpose one of the accused killed the deceased, and that killing was a natural consequence of the prosecution of such purpose. We think it would be less likely to lead to confusion if we dealt with the conviction of each accused separately, and so we propose dealing first with the conviction of Zia Dervish, the accused 2. When all the evidence was heard and Mr. Stavrinakis had addressed the Court for the accused it was submitted by the Solicitor-General Mr. PavIides in closing the case for the Crown that the facts shewed a preconceived plan in all three to do injury to the deceased, that the striking with the stick by Zia, accused 2, shewed he was in the cafe to create confusion to give an opportunity to Aziz, the accused 1, at the proper moment to interpose with a knife, "and that it was part of the plan that accused 1 should keep away for a while until confusion was created." Following the addresses of counsel for the accused and the prosecution the Assize Court came to the conclusion that Aziz Dervish, accused 1, and Zia Dervish, accused 2, together with Ali Moustafa Kanaria formed a common design to murder the deceased forest guard Ioannis Christodoulou. The judgment of the Court says, "The Court, considers you plotted together the murder of the forest guard and that the former accused 3 was with you in the plot. That even before you went to Halil's restaurant you had decided on the deed and discussed it." And at this stage it might not be inopportune to say that the Solicitor-General in the conduct of the appeal says that he did not invite this finding by the Assize Court. The Solicitor-General submits that he did invite a finding that the accused went to the cafe of Yannis to murder the deceased of alternatively to assault him. The law in England is that where several persons form a common purpose to commit a felony and in the prosecution of it one of them kills a man, all engaged in the common design are guilty of murder although only one strikes the fatal blow. But if the common purpose is to commit a misdemeanour then there must be evidence that the parties engaged intended to carry it out at all hazards. The law of Cyprus on this point is set out in section 22 of the Criminal Code and it is practically the same as the English law except that it makes no distinction between a felony and a misdemeanour. If the common design is for an unlawful purpose it is covered by section 22 whether the act to be perpetrated is a felony or a misdemeanour. And if we were of the opinion that the evidence shewed that the death of the forest guard was a natural consequence of the common design by Aziz, Zia and Ali Moustafa Kanaria for an unlawful purpose we should feel bound to consider the application of that law to the acts of Zia, the accused 2 in this case. But, after reading the record of this case carefully, we can see no trace of evidence by any of the witnesses in the case that there was a plot to murder Ioannis Christodoulou. Not even Ali Moustafa Kanaria, the accomplice, ventures to say so. Having come to the conclusion that there was no direct evidence whatever of a plot by these accused men to murder Ioannis Christodoulou before they met at Halil's restaurant, we have to consider whether an inference could reasonably be drawn from the fact that there was such a plot between them before their entry into the cafe where Ioannis was stabbed. On this aspect of the case it is submitted by Mr. Pavlides, the Solicitor-General, that an inference could be drawn from the entry of these 3 accused to the cafe of Yannis and their acts and behaviour therein that they had formed a common intention to prosecute an unlawful purpose. We are in this difficulty however that the members of the Assize Court did not direct their minds to this view of the facts, but found there was a plot or a common intention formed to murder Ioannis even before the three accused met at Halil's restaurant on this particular night. It is not mentioned by the Assize Court that they drew an inference from the above facts that the accused formed a common intention to prosecute an unlawful purpose and in carrying it out the deceased was killed as a natural consequence. But, if they did we consider that inference was not a reasonable one to draw and one that is not supported by the evidence, and even if we did think an inference could be drawn from the happenings of this night that there was a common design to assault the deceased forest guard with walking sticks, the killing with a knife is not, in our opinion, a natural consequence of that common design to assault, and therefore the act of Zia, the accused 2, does not come within section 22 of the Cyprus Criminal Code and render him liable for murder. After scrutinizing the record of the case very closely we can see no evidence at all to support the finding of the Assize Court that there was a plot to murder the forest guard Ioannis, or a plot of any sort for an unlawful purpose, and that being so we are obliged to hold that such a finding was not reasonable. And as Zia, the accused 2, did nothing more than strike deceased with a walking stick causing only unimportant wounds which had no connection with the cause of Ioanni's death the conviction of murder against Zia, the accused 2, cannot be sustained and is quashed. The Supreme Court then reviewed the evidence against Aziz and concluded: While we do not consider the evidence was very strong we cannot say that the finding of the Court was unreasonable, and therefore the appeal of Aziz must be dismissed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο