ANDREAS ANASTASSIADES ν. THE REPUBLIC (1977) 2 CLR 97

(1977)2 CLR 97 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

(1977)2 CLR 97 1977 March 26 [TRIANTAFYLLIDES, P, STAVRINIDES, L. LOIZOU, HADJIANASTASSIOU, A. LOIZOU, JJ.] ANDREAS ANASTASSIADES, Appellant, v. THE REPUBLIC, Respondent. (Criminal Appeal No. 3746). Evidence-Expert evidence-Evaluation of-Whether an expert may be asked the question which the Court has to decide-Expert evidence must be based on facts proved by admissible evidence-Premeditated murder-Expert medical witness-Who has not seen the dead body but has heard its condition described by wit-nesses in Court-Reconstructing the course of events that had ended in the victim lying where he was found-And giving opinion, based on an assumed state of facts-As to, inter alia, the position of the supposed assailant while inflicting the fatal blows and as to how blood found its way on his shoe-His evidence a link in the chain of circumstantial evidence which the Court accepted and upon which it made definite findings-It could be relied upon. Criminal Law-Premeditated murder-Alternative theory of defence consistent with innocence-It must be such that may be reasonably inferred from the whole of the evidence before the Court-It cannot be a matter of speculation, unless evidence has been adduced raising such other alternative possibilities and defences-No evidence to support any incident which could justify a Court to infer reasonably and not merely act on suspicion or speculation that there have been such acts as to raise the issue of provocation, accident or self-defence. Criminal Law-Burden of proof. Evidence-Circumstantial evidence-Case depending wholly or substantially on circumstantial evidence-Principles applicable. Criminal Law-Motive-Circumstantial evidence-Premeditated murder. Criminal Law- Trial in Criminal Cases-Probative effect of appellant's refusal to answer questions by the police-Comment by Judge on accused's election to make unsworn statement from the dock when called upon to make his defence-By referring to his conduct immediately after the killing-A legitimate comment in a case resting mainly on circumstantial evidence. Premeditated murder-Premeditation-Concept of-Premeditation is a question of fact to be determined in the light of the circumstances in each particular case-And which must be proved by the prosecution either by direct or indirect evidence-What has to be proved for premeditation to be established-Preditation inferred, by trial Court, from the brutality of the blows on the victim inflicted by a heavy chopping instrument that was not available at the place of the crime, but was brought there-From the fact that appellant had a motive to get rid of the victim-And from his conduct both before and after the murder-Though not everyone of the above items taken by itself would be sufficient to establish premeditation, when viewed cumulatively, in the context of the whole evidence, they do warrant the conclusion reached by the trial Court that the murder was premeditated. Judgments-Summing-up-Approach to by Court of Appeal. The appellant was convicted of premeditated murder and sentenced to death. The victim was killed on November 20, 1975 and the scene of the crime was a room, at the premises of the S.E.K.E.P. (Cyprus Olive Produce Marketing Board) where the appellant and the victim were working; he died after receiving multiple wounds on the head which were caused by forcible blows with a heavy cutting instrument and the cause of death was due to the laceration of the brain. The lethal weapon, which has not been recovered, was, according to expert evidence, one of the chopping variety with a cutting edge and some weight, such as an axe or chopper. The appellant was performing the duties of Secretary-Cashier and Accountant of S.E.K.E.P., and the victim was the Commercial Officer and Supervisor of its Accounting Department. In the morning of the day of the murder the appellant drove to his work at the S.E.K.E.P. offices driving his yellow "Honda" car and after he had parked it near the premises of S.E.K.E.P. he had a conversation with the wife of the victim; it was arranged that he would drive her husband home at lunch time. During this conversation she noticed that the appellant looked to herworried, pale, gloomy and as they were conversing he avoided looking in her eyes, although standing very near. Between 9.30 and 10.30 a.m. the appellant went to a nearby Supermarket store where he purchased two cartons of milk and a packet of cigarettes and on this occasion he was seen by the charwoman of the S.E.K.E.P. premises both when he left and on his return. The appellant was seen leaving the premises again and on this occasion he told the charwoman that he would be away for about half an hour and reminded her to clean up the basement of the premises; at this time she noticed that he was carrying some papers under his arm. At about the middle of the morning of the day of the murder the appellant was seen near his house driving his "Honda" car. He drove away from his house driving another car an "Alfa Romeo". Between 11.30-11.45 on the date of the crime he visited the Co-operative Central Bank in order to lodge two cheques; but he did not leave the premises of the Bank immediately; he visited another office in the Bank premises where he enquired whether certain rules relating to a medical scheme for the staff of the co-operative movement were ready. The victim was found dead at 10.45 a.m. by an employee of the Cyprus Telecommunications Authority who visited the premises of S.E.K.E.P. in the course of his work. The police were thereupon informed and a group of Police Officers visited the S.E.K.E.P. premises and started investigations. Just after 11.35 a.m. the appellant was seen approaching the S.E.K.E.P. premises through the trees in the backyard; he appeared to be a little nervous in his movements and restless, and he was wiping his face, which seemed to be a little pale, with his hands. As the Police Sergeant on duty at the back door noticed a fresh scratch on the forehead of the appellant and a substance which resembled blood on his left shoe the appellant was there and then interrogated, after duly cautioned, and questions were put to him regarding his movements and the scratch and blood. Professor Keith Simpson, who is the Senior Home Office Pathologist and a University Professor of Forensic Medicine gave evidence and was asked if he could reconstruct the course of events that had ended in the victim lying where he was found. He was further asked to express an opinion as to how the bloodfound on the left shoe of the appellant got there. Professor Simpson had not seen the dead body; he formed his opinion from relevant material which was made available to him. This material consisted of the plan of the premises in which the murder had taken place, photographs of the victim and a post-mortem report. Professor Simpson said that on the left shoe careful examination showed many blood spottings, some of which have, run down the shoe. One of these spottings, in particular, has run down the left side of the shoe in a liquid state and has tailed off underneath the sole of the shoe The left shoe showed a number of splashes with little spots of blood mostly down its left side and along the top on the right side. Professor Simpson, also, said that it was clearly certain, if not absolutely certain, that if he was right in that the assailant stood in the area he described, the left shoe of the assailant was nearest to the head from where the blood was coming; that the stains appearing on the left shoe came on that shoe whilst repeated blows were splashing blood from the head and face and that this shoe had taken the blood stains which otherwise would have marked the floor. The defence suggested to the Professor two alternative ways by which blood would drop on the left shoe of the assailant. The first alternative was that drops could land on the shoe by lifting the head of the victim and dropping it in the pool of blood.This alternative was rejected by the Professor after he explained that if the head was dropped even in blood, that was still liquid, then there might be some displacement of blood but not spraying into the air which was evident from spots found on the shoe. The second alternative suggested by the defence was that the blood that was found on the shoe could be the result of the assailant shaking his hand. Professor Simpson agreed with this alternative but added that the shaking of the hand in order to produce the fine spots that were found on the shoe had to be with the fingers spread, the hand had to be over the left side of the left shoe, it had to be quite heavily stained with blood and the blood had to be running blood and not blood smeared on the hand or in jelly form. In his statement from, the dock the appellant stated that heleft the office at 9.30 am. On his return around 10 o'clock he saw the victim on the floor in a pool of blood. He was shocked and he went near the body and tried to lift the head up. The wounds were so horrible and he dropped the head on the floor. He shook his hand, which was full of blood, trying to get rid of it, feeling sick. Then being panicked he ran out of the office, at the same time wiping his hand on his jacket. The trial Court rejected both alternatives suggested by the defence; and found that the only possible explanation which was a certainty was that the appellant was standing to the right of the victim and that the stains that got on his shoe dropped there whilst he was repeatedly assaulting the victim. The trial Court further found that the appellant had a strong enough motive to kill the victim. This motive was found to be the state of the accounts kept by the appellant and the £47,249 deficiency in the cash in hand for which he was responsible. The books which were kept by the victim were in perfect order and through these books one could verify the accounts kept by the appellant. After finding that the appellant was the person who killed the victim the trial Court considered the issue of premeditation and summarised the case for the prosecution as follows: "1. The killing was a very brutal one. 2. It was committed by a heavy chopping instrument that was brought to the S.E.K.E.P. premises and was not one that was available there. This weapon must have been taken by the accused to the office the latest on the morning the murder was committed. 3. The assailant, who is the accused, had a motive to get rid of the victim. 4. The conduct of the accused early in the morning of the 20.11.75 when he met the wife of the victim outside the S.E.K.E.P. offices with whom he had a conversation during which he avoided looking at her face; and, 5. The conduct of the accused immediately after the killing to which conduct we have already referred i.e. his attempt to built up an alibi, to conceal facts and tell lies". And the trial Court concluded as follows: "Having in mind the above points which are provedbeyond doubt by the evidence before us we have no hesitation in arriving at the conclusion beyond reasonable doubt that the accused killed the deceased in the execution of a preconceived plan-a plan which he formed in his mind the latest when he went to his work that morning. We further find that the accused proceeded to execute his plan although he had time to reflect on his decision and desist from carrying out his intentions". Upon appeal Counsel for the appellant contended: 1That the findings of the trial Court that the appellant delivered the fatal blows on the victim and/or that his left shoe was stained with blood whilst he was delivering the fatal blows and/or with regard to his position whilst so delivering them, were wrong in that (a)It was Professor Simpson who tried the case and not the Court; (b)The Assize Court failed to evaluate the evidence of the Professor and test the accuracy of his conclusions and in fact the conclusions of the court were those of the Professor; (c)The Assize Court failed to draw their own independent conclusions as to how and by whom the fatal blows were delivered; (d)The opinion and the conclusions of Professor Simpson were based not on proved facts but on the assumption that the appellant was the culprit and on inaccurate and mistaken material, such as the photographs of the scene and the post-mortem report and also on material, the correctness of which could not be tested either by the expert or the Court; and (e)Professor Simpson started with the idea that the appellant was guilty by proceeding on the assumption that he who wore the shoe was the assailant. 2.That the trial Court failed to examine the totality of the evidence and in particular, that which was equally consistent with the innocence of the appellant in that the trial Court failed to examine the alternative put to Professor Simpson with which the witness agreed and whichwas to the effect that the spots on the left shoe could also get thereon if the head of the, victim, was shaken. 3.That the trial Court treated the evidence of Professor Simpson as if it were a gospel and tested the rest of the evidence with it; and that in this way the trial Court misdirected itself on the burden of proof which is on the prosecution, by shifting same on the appellant in such a way as he was expected of him to establish his innocence. 4. That the trial Court made up its mind too early about the guilt of the appellant and then examined the rest of the evidence. (I) On the question whether the appellant was the person who killed the victim. Held, (Hadjianastassiou, J. dissenting) that in view of the evidence adduced the judgment of the Assize Court regarding the issue of the murderer's identity must be upheld. (A) Per A. Loizou, J., L. Loizou, J., concurring:

(1)That experts inevitably have to be asked questions requiring them to assume the existence of certain facts and it is for the Court to determine, on the evidence adduced before it, about their existence or not, as at the stage of giving evidence, an expert can only assume of their having been proven; that in this respect, the danger of the expert usurping the functions of the Court, is avoided, inasmuch as the determination of the facts upon which a conclusion may be drawn, is made clear, that it is left to the Court; and that, accordingly, by assuming the existence of certain facts Professor Simpson could be asked how the blood found its way on the shoe (pp 140-142 post)

(2)That the evidence of Professor Simpson was given no more importance either because of his impressive qualifications and long experience, or on account of its substance than it deserved to be given because of its positiveness on all material aspects on which the Court relied and the impartial and fair manner in which, it was given; that it is, not correct to say that the trial Court accepted, only those parts of, the evidence of Professor Simpson which were tending .to show the guilt of the appellant and not the contrary; that the trial Court examined the whole of the evidence of this witness and it dealt with it in extenso; that on all material points his testimony was unshaken and dulysupported by the proven facts of the case; that though it is correct that the common Law rule is that an expert witness may not be asked the question which the Court has to decide, and though this rule is being eroded, in the present case it cannot be stated that Professor Simpson was asked to answer the very issue that the Court had to decide; and that his evidence was a link in the chain of circumstantial evidence which the Court accepted and upon which it made definite findings.

(3)That with regard to the complaint that the trial Court failed to examine the possibility of the splashing on the left shoe having been Caused by the shaking of-the victim, a possibility not excluded by Professor Simpson-the trial Court followed this course as a consequence to its finding that there was nothing in the evidence leaving room for such possibility and that this was particularly so after it excluded the claim that the appellant on seeing his colleague dead was shocked and acted mechanically thereafter; and that, therefore, this is not a case where, a trial Court bound as it is, to consider not only the, theory of the prosecution but also any alternative theory that is possible and consistent with the evidence it failed or refused to do so or did not do so adequately (See R. v. Turkington, 22 Cr. App. R. 91; pp. 143-144 post).

(4)That the alternative theory has to be possible and consistent with evidence and in this case it was not so after the above finding of the trial Court; that this is not a case where the trial Court failed in its undoubted duty to deal adequately with any other view of the facts which might reasonably arise out of the evidence and the material before them, as it is on the evidence and the evidence alone that an accused person is being tried; that in this Case there was no material left to be examined after the trial Court ruled out the possibility of the head having been shaken mechanically through the shock of the appellant and after accepting the rest of the evidence which connected the appellant with the commission, of the crime rather than being the person who discovered the victim in that dreadful state; and that, accordingly, the contention of the appellant must fail.

(5)That it is the duty of the prosecution to prove the prisoner's guilt and if at the conclusion of the trial, considering the totality of the case there is reasonable doubt then the prosecution has failed to make out a case against the appellant who is entitled to be acquitted; that in criminal trials in which the case against the accused depends wholly or substantially on circumstantialevidence after the facts sworn are proved a Court must decide not whether these facts are consistent with the prisoner's guilt, but also that they are inconsistent with any other reasonable conclusion, other than that the prisoner committed the act. (See R v. Hodge, [1838] 2 Lewin, p. 227; McGreevy. v D.P.P. [1973] 1 W.L.R. 276); and that in this case the contention that the trial Court misdirected itself on the burden of proof is not borne out by anything said in the judgment of the trial Court.

(6)That the contention that the trial Court made up its mind too early about the guilt of the appellant is an argument relating more to the style and the manner in which a judgment is written rather than to its substance; that three experienced Judges having heard the evidence day after day, for weeks on, reserved their judgment at the conclusion, of the trial and delivered it some days later; that it is reasonable to infer and there is nothing in the judgment itself to suggest the contrary-that having deliberated they made their findings, drew therefrom their conclusions and arrived at the verdict they did then they proceeded to write their judgment in the manner and following, the sequence that they thought more proper in the circumstances and in view of the mass of evidence adduced; and that it cannot be said that they really made up their mind too soon and then tested their conclusion with, the, rest of the evidence.

(7)That having carefully and anxiously considered the findings of the trial Court and its conclusions drawn therefrom and bearing in mind the principles upon which this Court will interfere with such findings the Court (A. Loizou, J., L. Loizou, J. concurring) has come to the conclusion that the appellant upon whom the burden of proof lay, has failed to persuade the Court that such findings and conclusions, considering the evidence on record properly assessed, are unreasonable.

(8)That, moreover, there was evidence of motive which, as such, though immaterial so far as regards criminal responsibility in cases like the present one (see s. 9 of Cap. 154), yet, facts which supply a motive for a particular act "are among the items of circumstantial evidence which are most often admitted". (See Cross on evidence p. 34; Will's on Circumstantial Evidence, 7th Ed p 64). (B) Per Triantafyllides P.: After referring to the legal nature of evidence given by expert witnesses and to the law relating to the burden of proof-vide pp: 189-195 post).

(1)That having carefully perused the whole judgment of thetrial Court, I am unable to agree with the submission of counsel for the appellant that, at the trial, the question of the guilt or innocence of the, appellant was approached in a manner casting improperly on the appellant, as an accused person, the burden to prove his innocence; that I am quite satisfied that the trial Court considered the evidence as a whole and reached, eventually, its verdict on the footing that the prosecution had discharged the onus of proving the appellant guilty as charged.

(2)That in the present case, as well as in other cases where an attempt is made to dissect the judgment of a trial Court in order to discern, in the process of doing so, the thinking of such Court in reaching its conclusion concerning the guilt or innocence of an accused person, a careful distinction must always be made between what, on the one hand can, properly, be taken as amounting to an error concerning the burden of proof and, on the other hand, merely the method of drafting the judgment which, by itself, cannot be safely relied on as being indicative of the reasoning process of the trial Court in reaching its verdict; that it must not be lost sight of that a trial Court normally considers the case as a whole before reaching its decision as regards its outcome, and then, having done so, it proceeds to write its judgment, giving its reasons for such decision; and that is why its judgment has to be read as a whole and actual errors must be distinguished from mere defects, of style (see Charitonos and Others v. Republic

(1971)2 C.L.R. 40 at p. 97)

(3)With regard to the alternative theory put forward by the defence viz. the possibility that the head of the victim may have been shaken by the appellant when he lifted it up from the floor, with the result that the appellant's left shoe got splashed in the manner in which Professor Simpson has described (after stating the Law on the subject-vide pp. 198-200 post): That I cannot agree with counsel for the appellant that this was a consistent with the evidence alternative which ought not to have been ignored by the trial Court; that there was no cogent evidence before the, trial Court giving reasonably rise to the inference that anything of this sort had happened and, therefore, this was an alternative involving pure speculation, which, consequently, did not have to be considered by the trial Court. (See Mancini v. D.P.P. [1942] A.C. 1 at p. 12).

(4)That facts which tend to show motive for committing an offence are treated as facts which are relevant, in the sense ofconnecting the accused with the commission of the offence; and that once in this case, a possible motive has been established it became a relevant element of circumstantial evidence.

(5)With regard to the refusal of the appellant to answer further questions when being interrogated by the police and his refusal on the advice of his advocate to answer questions when he had finished making a statement to the Police (after stating the Law on the subject-vide pp. 204-209 post): That the refusal of the appellant to answer further questions put to him by the police, on November 21, 1975, or to answer any questions after he had made a statement to the police later on on the same day, is not a factor which can properly or safely, in the circumstances of the present case, be taken into account against the appellant, in determining the outcome of the present appeal; to do otherwise would be to render nugatory both the right of the appellant to refuse to answer questions after he had been cautioned that he was not bound to say anything, as well as his right to seek legal advice and to act in accordance with it.

(6)With regard to the failure of the appellant to give evidence on oath at the trial (after stating the Law on the subject vide pp. 210-215 post): In the light of the relevant case-law (vide pp. 210-215 post) and because, in my view, in the Vrakas case, (

(1973)2 C.L.R. 139 at p. 191) the failure of one of the appellants to give evidence, in his own defence, was treated as a factor related to the issue of his guilt in the light only of the particular circumstances of that case, without this Court intending to lay down then an inflexible rule of general application, I have reached the conclusion that the safest course, in the present case, is to disregard the fact that, the appellant has elected to make an unsworn statement from the dock, instead of giving evidence on oath, and, thus, not to treat it as a factor influencing the outcome of this appeal, especially as the trial Court itself made no adverse comment in this respect.

(7)On the question whether or not the appeal of the appellant against his conviction should be allowed: (

1. a)That it is a conviction based on circumstantial evidence and, so, in deciding whether or not to uphold it, I have not lost sight of the "rule", expounded in R. v. Hodge, 168 E.R. 1136 as such "rule" has been commented on, and explained, in McGreevyv.D.P.P. [1973] 1 All E.R. 503, at p, 508 (see also, in this respect the Vrakas case, supra, at pp. 169-170). (
2. b)That, furthermore, I have borne in mind the approach rightly adopted quite recently by our Supreme Court in HjiSavva v. The Republic,

(1976)2 C.L.R. 13, namely, that, in deciding whether or not to uphold on appeal, a conviction for a criminal offence a "lurking doubt" should operate in favour of the appellant. (c) That, with all the foregoing in mind, I have anxiously considered the correctness of the conviction of the appellant and, in the end, I have reached the conclusion that such conviction should be upheld; I really feel no doubt, reasonable, lurking or other, that the appellant is the person who killed the victim in the present case. In forming this view, I have been, particularly, influenced by the manner in which the appellant's shoe was stained with blood and by his conduct after the death of the victim (excluding, of course, his refusal to answer questions put to him by the police and his failure to give evidence on oath at the trial, which are matters which I have decided, as indicated earlier in this judgment, not to allow them to. weigh against him). (C) Per Stavrinides, J.: That the judgment of the trial Court must be upheld both as to the issue of the murderer's identity and as to premeditation. (II) On the question whether the murder was committed with premeditation: Held (Triantafyllides P and Hadjianastassiou J. dissenting) that the murder was committed with premeditation. (A) Per A. Loizou, J L. Loizou, J. concurring:

(1)That the burden of establishing beyond reasonable doubt the element of premeditation, is upon the prosecution, either by direct evidence or by forming it from the surrounding circumstances of the case, and this inference of premeditation had to be not only consistent with the evidence, but the facts of the case must be such as to be inconsistent with any other rational conclusion than that the act was committed with premeditation.

(2)That though it is correct to say that each one of the five items on which the trial Court relied in order to find premeditation (see. pp. 149-150 post), taken by itself, does not prove theexistence of premeditation, when viewed cumulatively in the context of the whole of the evidence that was before the trial Court, they were sufficient to justify with the certainty required in criminal cases and beyond reasonable doubt the inference that the fatal blows were delivered by the appellant on the victim in the execution of a preconceived plan which he proceeded to execute, although he had time to reflect on his decision and desist from carrying out his intentions.

(3)That there was premeditation is apparent from the brutality of the blows which started when the victim was standing in the room and continued whilst the victim was lying on the floor with his face and head already severely wounded, which is indicative of the determination of the appellant to finish him off; that connected with this is the instrument used and the fact that it could not have been found there, unless it had been intentionally brought in; and that the nature of the instrument used and the circumstances under which it came, to the scene of the crime, are most significant factors with regard to the issue of premeditation (see Koliandris v. Republic

(1965)2 C.L.R. p. 72 at p. 82 and R. v. Agathocleous, 8 C.L.R. 97 at p. 98).

(4)That relevant to the question of premeditation was the coolness of the appellant both before and after the killing; that such conduct not only excludes any shock or mechanical movements, as alleged on his behalf, but on the contrary, it reveals a calmness of mind which is a, material consideration in deter mining the length of time that is usually required between the formation of the intention to kill and, the reflection and relinquishment of such intention before it is put into execution and from which, calmness, the inference could be drawn that there existed such premeditation that satisfied the test laid down in the case of R. v. Shaban, 8 C.L.R. 82 which has been consistently applied in all subsequent cases where the issue whether there was premeditation or not in respect of the killing in each one of them, was treated as a question of fact depending on the particular circumstances of each one of them.

(5)On the question whether looking at the evidence as a whole alternative theories were possible and consistent with the evidence suggesting that the fatal blow were delivered otherwise than with premeditation: That alternative possibilities must be such that may be reasonably inferred from the whole of the evidence before the Court;that otherwise Courts will be invited to speculate as to happenings which cannot be reasonably inferred from the material before it and this is not their function; that it is on the evidence and the evidence alone that the prisoner is being tried and it would only lead to confusion and possible injustice if either Judge or jury went outside it (see Mancini v. D.P.P. [1942] A.C. 1); that in this case there is no evidence to support any incident which could justify a Court to infer reasonably and not merely act on suspicion or speculation that there have been such acts as to raise the issue of provocation, accident or self-defence-in fact the undisturbed state of the scene excludes any quarrel having taken place-or such other acts as they could possibly render the act of the killing of the victim unpremeditated or justified on account of passion or other state of mind.

(6)On the question of the probative effect of appellant's refusal to answer questions or further questions in statements to the Police and on the question of the principles governing the comments that may be made by trial Courts when an accused person elects to make an unsworn statement from the dock when called upon to make his defence: That the trial Court did not comment on appellant's failure to answer questions or on the fact that he elected to make an unsworn statement from the dock; that what the Court commented, upon, was appellant's conduct immediately after the killing which was a legitimate comment to be made in a case resting on circumstantial evidence (see Charalambous v. Rex, 18 C.L.R. 61 and Wills on Circumstantial Evidence, 7th ed. p 413).

(7)For all the above reasons the Court (A. Loizou, J., L. Loizou, J. concurring) is satisfied that the trial Court was justified in convicting the appellant of premeditated murder, it not been persuaded that there are any grounds justifying its interference either with the findings of fact or the conclusions of the trial Court or that there has been any misdirection in the case, nor has it been persuaded by the appellant that the conviction, having regard to the evidence, was unreasonable. This appeal, therefore, should be dismissed. (B) Per L. Loizou, J. on the question of premeditation:

(1)That the issue as to whether a killing is premeditated or not has to be resolved in the light of all the circumstances of eachparticular case; that premediation is a question of fact which must be proved by the prosecution either by direct or indirect evidence; that the time which elapses between the formation of the intention to kill and the execution of that intention is a relevant factor in determining whether there was sufficient opportunity to reflect whether to kill or not and in this respect the state of a person's mind is an essential element; that, in other words, if there was or was not premeditation does not merely depend on the length of the period that elapsed between the formation of the intention and its execution but also on the state of mind of the assailant as an element affecting his capacity to reflect on his decision and desist from it within such period; that for premeditation to be established it is, therefore, essential to show intention to cause death which was, formed and continued to ex st before the time of the act causing the death as well as at the time of the killing notwithstanding that having regard to the assailant's state of mind, he had the opportunity to reflect upon and desist from such decision.

(2)(After dealing with the facts of the case-vide pp 161-174 post) That it may well be that not everyone of the items relied upon by the trial Court in order to find premeditation (vide pp. 173-174 post) would be sufficient to establish premeditation but when taken together they do warrant the conclusion reached by the Court that the murder was premeditated; that the evidence as accepted, and the facts as found by the trial Court, disclose careful preparation and unwavering determination on the part of the appellant to kill the victim and his, whole behaviour on that day indicates coolness of, mind all through, elements which can hardly be consistent with absence of premeditation. Appeal dismissed. Cases referred to: Davie v. Edinborough Magistrates

(1953)S.C, 34 at p. 40; R. v. Mason, 7 Cr. App. R. 67, Mitas v. Rex, 18 C.L.R. 63 at pp. 66, 67; R. v. Lanfear [1968] 1 All E.R. 683 at p.685; R. v. Turner [1975] 1 All E.R. 70 at pp. 73, 74; R. v. Turkington 22 Cr App. R. 91 at p 92, Mancini v Director of Public Prosecutions [1942] A C 1 at pp 7, 8, 11, 12; Halil v. Republic, 1961C.L.R. 432 at pp. 433, 434, 437, 438, 439; Woolminghton v. D.P.P. [1935] 25 Cr. App. R. 72; [1935] A.C. 462 at pp. 481, 482; R. v. Hodge [1838] 2 Lewin 227; 168 E.R. 1136; McGreevy v. D.P.P. [1973] 1 W.L.R. 276 at p. 282; [1973] 1 All E.R. 503 at pp. 508, 510,511; R. v. Mentesh, 14 C.L.R. 232 at p. 245; HjiSavva alias Koutras v. The Republic

(1976)2 C.L.R. 13 at pp. 38-39, 57-58; Vrakas and Another v. The Republic

(1973)2 C.L.R. 139 at pp. 169, 170, 175, 176, 177, 191; R. v. Treacy [1944] 2 All E.R: 229 at p. 232; The Republic and Loftis, 1 R.S.CC. 30 at p. 33; R. v. Shaban, 8 C.L.R. 82 at p. 84; Aristidou v. Republic

(1967)2 C.L.R. 43 at pp. 74, 81, 82, 83, 84, 95, 99, 103, 104, 105, 106, 107; Koliandris v. The Republic

(1965)2 C.L.R. 72 at p. 82; R. v. Agathocles, 8 C.L.R. 97 at pp. 98, 99; Kalli (No. 2) v. The Republic, 1961 C.L.R. 440; Halil v. The Republic, 1962 C.L.R. 18 at pp. 21-23; Pierls v. The Republic

(1963)1 C.L.R. 87 at pp. 91-92; Pavlou v. The Republic, 1964 C.L.R. 97 at pp. 100-101; Ioannides v. The Republic

(1968)2 C.L.R. 169 at pp. 190-191, 195-196; Ayres v. The Republic j971) 2 C.L.R. 16 at pp. 21, 35; Charalambous v. Rex, 18 C.L.R. 61; R. v. Matheson [1958] 2 All E.R. 87 at p. 89; R. v. Lobell [1957] 1 Q.B. 547 at pp. 550, 551; Kafalos v. The Queen, 19 C.L.R. 121 at p. 126; Charitonos and Others v. The Republic

(1971)2 C.L.R. 40 at pp. 97, 107, 113-114; Kyprianou v. The Republic

(1976)2 C.L.R. 75; Vouniotis v. The Republic

(1975)2 C.L.R. 34 at pp. 54-61, 103-104; R. v. Naylor, 23 Cr. App. R. 177 at pp. 180-181; R. v. Leckey, 29, Cr. App. R. 128 at p.135; R. v. Gerard, 32Cr. App. R. 132 at pp. 134-135; R. v. Davis, 43 Cr. App. R. 215; R. v. Hoare, 50 Cr. App. R. 166 at p. 170; Hall v. Reginam [1971] 1 All E.R. E.R. 322 at pp. 323, 324; Parkes v. The Queen [1976] 3 All E.R. 380 at p. 382; R. v. Chandler [1976] 3 All E.R. 105 at pp. 107, 109; R. v. Frost and Another, 48 Cr. App. R. 284 at pp. 290-291; R. v. Coughlan [1976] Crim. L.R. 629; R. v. Pratt [1971] Crim. L.R. 234; R. v. Mutch [1973] 1 All E.R. 178 at pp. 181, 182; R. v. Sparrow [1973] 2 All E.R. 129 at p. 135; R. v. Brigden [1973] Crim. L.R. 579; R. v. Gallagher [1974] 3 All E.R. 118 at pp. 124, 125; R. v. Chakoli, 8 C.L.R. 93 at p. 94; Furman v. State of Georghia 33 L. Ed. 2 d. 346; Koumbaris v. The Republic

(1967)2 C.L.R. 1; Patsalides v. Afsharian

(1965)1 C.L.R. 134; Mamas v. The Firm Arma Tyres

(1966)1 C.L.R. 158; Miliotis v. The Police

(1971)2 C.L.R. 292; Varnava v. The Police

(1973)2 C.L.R. 317; Loftis v. The Republic, 1961 C.L.R. 108; Kirzis v. The Medical Department of Famagusta

(1969)2 C.L.R. 213; R. v. Cooper [1969] 1 All E.R. 32 at p. 33; Stafford v. D.P.P. [1973] 3 All E.R. 762 at p. 764; R. v. Nowell, 32 Cr. App. R. 173; Abinger v. Ashton, L.R. 17 Eq. 358 at pp. 373-374; Aitken v. McMeckan [1895] A.C. 310 at pp. 315, 316; Newton v. Ricketts, 9 H.L. Cas. 262 at p. 266; Perera v. Perera [1901] A.C. 354 -at p. 359; James Frank Rivett, 34 Cr. App. R. 87 at p. 94; Thomas Mason, 7 Cr. App. R. 67 at pp. 68, 69; Lowery v. The Queen [1973] 3 All E.R. 662; D.P.P. v. Jordan [1976] 3 All E.R. 775 H.L.; Reg. v. Frances, 4 Cox C.C. 57 at p. 58; R. v. Kusmack

(1955)20 C.R. 365 at p. 383; R. v. Mitchell [1892] 17 Cox C.C. 503 at p. 508; D.P.P: v. Christie [1914-1915] All E.R. Rep. 63 at pp. 67, 71; R. v. Turnbull [1976] 3 All E.R. 549 at p. 552; Nestoros v. The Republic, 1961 C.L.R. 217; Petrides v. The Republic, 1964 C.L.R. 413; HjiCosta (No. 2) v. The Republic

(1965)2 C.L.R. 95; Zanettos v. The Police

(1968)2..C.L.R. 232; Pierides v. The Republic

(1971)2 C.L.R. 263 at pp. 271, 276; Anderson v. Reginam [1971] 3 All E.R. 768 at pp. 772, 773. Appeal against conviction. Appeal against conviction by Andreas Anastassiades who was convicted on the 8th July, 1976 at the Assize Court of Nicosia (Criminal Case No. 736/76) on one count of the offence of premeditated murder, contrary to sections 203 and 204 of the Criminal Code, Cap. 154 (as amended by section 5, of the Criminal Code (Amendment) Law, 1962 (Law 3/62)) and. was sentenced to death by. Demetriades, P.D.C., Boyiadjis, S.D.J. and Michaelides, D J. E. Efstathiou with L. Georghiadou (Mrs.), S. Mamantopoulos and D. Koutras, for the appellant. L. Loucaides, Deputy Attorney-General of the Republic, with A. Evangelou, Counsel of the Republic, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES, P.: The first judgment will be delivered by Mr. Justice A. Loizou. A. LOIZOU, J.: This is an appeal from the judgment of the Assize Court of Nicosia, by which the appellant was found guilty and convicted of the offence of the premeditated murder of Kimon Ioannou Charalambous, alias Kimon Charal, contrary to sections 203 and 204 of the Criminal Code, Cap. 154, as amended by section 5 of the Criminal Code (Amendment) Law, 1962, (Law 3/62), and sentenced to death. The numerous grounds of law set out in the Notice of Appeal, may conveniently be grouped under two main headings, namely, (a)that the conviction was, having regard to the evidence adduced, unreasonable, and (b)in any event, premeditation which is an essential ingredient of the offence of which the appellant was found guilty, had not been proved beyond reasonable doubt. The facts of the case are as follows: The appellant and the victim were employees of the MarketingBoard for Olive Produce, known as "S.E.K.E.P.". The appellant was its secretary, cashier and accountant and as such, kept the petit-cash, the cash-book, the receipt register, receipt books and invoices. The victim was the commercial officer and supervisor of the Accounting Department and kept a second set of books. They were both working in the same room of the S.E.K.E.P. offices which are situated at 29 Achaeon Street, Nicosia. Their houses were in the same neighbourhood by the Cyprus Broadcasting Corporation; they had social relations and shared common hobbies. In the morning of the 20th November, 1975, the appellant driving his yellow Honda car, left his home for his work. On his way he called at the ELEANA bookshop which belonged to himself and his family. At about the same time the victim left his house for his work with his wife and child which he dropped at the day nursery and arrived at the S.E.K.E.P. premises where they saw the appellant coming out of his yellow Honda car and they greeted each other. The victim went towards the offices and his wife went round the car so that she would get into the driver's seat and drive it away. The appellant approached her, they met at the back of the car and she asked him to give a lift home to her husband at noon. The appellant was wearing at the time a light beige imitation swede jacket, reaching below the waist, which the appellant had bought in London. It was apparently impressive in style, as there had been comments by Mrs. Charal and the victim when they saw him wearing it on a previous occasion. This jacket was also noticed by the Manager of S.E.K.E.P., Mr. Andreas Charalambous. It had a belt to go with it, but Mrs. Charal was not certain if he had it on on that day. She noticed also that the appellant looked to her worried, pale, gloomy and as they were conversing he avoided looking in her eyes, although standing very near. The other people normally employed at the S.E.KE.P. offices, besides the appellant and the victim, were Andreas Charaambous, its Manager, Elli Andreou, the typist, Georghios Andreou, the messenger who, however, was stationed at the factory of S.E.K.E.P. at Latsia on the suggestion of the appellant, and Maria Vartholomeou, the char-woman. Elli Andreou had been on leave on the 17th and the 18th of November. Onthe 19th she went to work, but left in the course of the day, as she was feeling ill; on the day of the offence she did not go to the office at the normal hour and at about 9 a.m. her husband telephoned to the appellant and on informing him that his wife was ill the appellant said that he had understood it. The Manager, Charalambous, also left the premises at 8.30 a.m. for duty at Lythrodonda. Before doing so, however, he informed the appellant and the victim about it and told them that he wanted the report of the auditors forthwith, or reasonable excuse for not having it, otherwise he would take up the matter personally in order to find out what impediments existed for its non preparation. There had been successive postponements of this audit mainly at the request of the appellant, the previous time was on the 17th of November, when a few minutes before the audit was due to take place, the appellant rang up N. Yiamakis, their auditor and asked him to postpone his visit on that day. The excuse he gave was that the victim was not feeling well and he himself had to go out for some payments and also attend the Court about a relative's case. Yiamakis agreed to this request and they arranged that the audit would take place on Thursday the 20th November, at 8.30 a.m. Yiamakis, however, remarked that he hoped that that would be the last postponement, but it was not to be so, as events turned out subsequently. In fact, on the 20th and before Charalambous told the appellant had already, as from 8.20 a.m. asked Yiamakis to defer, if possible, the appointment to 11 a.m., giving the excuse that he had to go out to make some payments; to this request, Yiamakis agreed. At about 8.30 a.m. Koumides, a chemist at the S.E.K.E.P. factory at Latsia, telephoned to the offices and told the appellant that he should have had by then an invoice of Michalios, a timber merchant, and, asked him whether he had issued the cheques for the payment of that firm so that he would pass and get it and pay the timber merchant. The appellant told him that the General Manager would call at the factory and that he should delay his departure therefrom, so that they would meet. This witness then came to Nicosia after the Manager called at the factory. On his way, he went first to the timber merchant, then, to another commercial shop and he arrived at the S.E.K.E.P. premises at about 11.20 a.m. where he met a policeman in civilian clothes. He was then asked to and he identifiedthe victim. After that, the appellant arrived and asked him what was, going on, but the witness did not reply. On that morning, Maria Vartholomeou saw the appellant and the victim in the corridor going towards their office. She went to the kitchen and soon afterwards the appellant went there and told her that she had to clean on that day the basement as it was dirty. She started cleaning the kitchen, then the office of the Manager, the auditors' office and the verandah at the back of the store room. When she reached the cemented part of the front yard, and whilst sweeping it, the appellant passed by and he heard him say, "put the water on, I shall be back by the time it boils", which, remark she understood to be addressed to the victim. She then continued with her work and whilst on the verandah of the Manager's office, she saw the appellant return, carrying a nylon bag with cartons of fresh milk in it. He had, in fact, bought them from the nearby grocery of Takis Charalambides for the victim, together with a packet of cigarettes. This shopping was regularly done either by the appellant or the victim. The nylon bag and the milk were later found in the kitchen of the premises. Vartholomeou remained on the verandah and washed its floor; she then went into the kitchen to make some coffee and on her way back to the verandah, to get the broom, she heard the footsteps of the appellant in the corridor, who said to her: "Mrs. Maria, I am going away and I shall return in half an hour. Don't forget the basement". She then looked towards the corridor and saw the appellant entering the hall, carrying under his left arm some papers. When she got the broom she went to the basement and cleaned it. She came up, washed the buckets, picked some lemons from the trees in the yard and when she returned to the building in order to finish, her work, she heard a voice and met Nicos Andreou, a Cyprus Telecommunications employee who visited the offices of S.E.K.E.P. to deliver a letter. The time was approximately 10.45 a.m. in respect of which the trial Court made a finding with which I shah be dealing later. Andreou had rang the bell of the front door, but there was no reply. In fact, the bell was not functioning, and he entered the corridor trying to attract somebody's attention, when he met Vartholomeou. Together they went along the corridor, when they heard a telephone ring and stop without anybody answering it. He was then about to leave, when on something being told by Vartholomeou, he turned opened a door and saw a dead man, eventually, identified as the victim, lying on the floor. Andreou, on finding the dead man, attempted to telephone the Police from there, but as he could not operate the telephone switch board, he drove to the Central Bank which is nearby; there, he met Police Sergeant Myriantheas, to whom he spoke, and who rang up the C.I.D. office. The time was 10.55 a.m. Myriantheas then went to the, S.E.K.E.P. premises, where several C.I.D. officers had already arrived. The first police officer to arrive at the scene of this crime, was Police Constable" Periclis Efstathiou, attached to the C.I.D. at Ayios Dhometios Police Station. He received the message at 11.05 hours and arrived at S.E.K.E.P. at 11.10 hours, where he met the char-woman, Vartholomeou. As a result of what she told him he went into the room where he saw the victim with wounds on his head and face and with blood around his head and bloodstains on the floor of the room. The scene of the crime was, later, on that day, photographed by a, Police Photographer, Aristofanous, and from, the bundle of photographs produced as exhibit 6, photograph 7 shows the scene of the crime, as found by P.C. Efstathiou. Nothing was is disturbed, in that room; he looked also into the corridor and the other rooms in search of exhibits or anyone who might have been there, but he found nothing. In the meantime Inspector Komodikis in charge of the C.I.D. of Ayios Dhometios Police Station arrived at the scene, and shortly afterwards, Chief Superintendent Aristocleous, the then second-in- command of the C.I.D. at Police Headquarters, accompanied by Inspector Adradjiotis, the officer in charge of the Nicosia Divisional C.I.D. Sgt. Paphitis was then detailed to guard the back of the building, with another policeman. Whilst there, Sgt, Eaphitis noticed the appellant arrive, holding a briefcase and approach the building through the trees in the backyard. This witness noticed that the appellant seemed somehow nervous in his movements, he was restless, wiping his face with his hand, and a little pale. The appellant asked him what was going on, but he did not reply to him. He then asked Sgt. Paphitis, whether this colleague had been assaulted, but as by that time the Sergeant had noticed that on his forehead there was a fresh scratch and on his left shoe a substance that resembled blood, hedid not reply, and asked him to wait and that he would hear about it and went and informed Superintendent Aristocleous and Inspector Adradjiotis, about the arrival of the appellant.Then all went back and Superintendent Aristocleous identified himself to the appellant, told him that he was investigating, into the murder of Kimon Charal, cautioned him and informed him that he intended to put to him a number of questions, which he did, and which, together with the answers given by the appellant, were recorded by Adradjiotis on statement sheets. The record of these questions and answers was produced at the trial as exhibit 37. It reads: "Q. What is your name? A. Andreas Anastassiades. Are you going to tell me at last what is happening? Q. I am Superintendent Aristocleous and I am investigating the murder of Kimon Charal and I want to put certain questions to you. From what time are you absent from your office? You are not obliged to reply unless you want but whatever you say will be recorded and may be given in evidence. A. From 10.00-12.00. Q. I see on your forehead a scratch can you explain to me how it was caused? A. Perhaps it is from a tree or I hit on a door. Q. The spectacles that you wear appear as if they have blood on them as well, as your left shoe. Can you give me an explanation? A. I do not know. Bring me water to drink. (The accused then sat on a step). Q. How did you leave the office? A. With my car Alfa Romeo and I have it parked nearby". After that, the appellant led them to the place where he had parked his car which was searched, but nothing connected with the crime was found therein. From there, the appellant was driven to the Nicosia Divisional Polite C.I.D. offices at Strovolos. The clothes and the shoes which the appellant was wearing when seen by the Police at the back yard of S.E.K.E.P. premises were seized and kept as exhibits ((exh. 17 and 16 respectively). They were given to Mr. Ashiotis, an Advisor to the Government Pathological Laboratory and till December, 1975 the Medical Laboratory Superintendent of the Government, possessor of a diploma in haematology and blood transfusion, who has been examining medicolegal exhibits for 25 years, including examinations of blood stains and other biological products. In fact, Mr. Ashiotis arrived at the scene of the crime at about 12.12 hours of the 20th November. On entering the room this witness noticed that there was a big pool of-blood, 2' x 3', the middle of which, was in semi-fluid condition, whilst its edges started to dry up. There were many blood stains the floor of the room, blood stains on the north wall beside the head of the victim and very few blood stains on the window. There were also blood stains on a waste-paper, basket; approximately 8 inches from, the head of the victim and on a chair that was on the right of the victim. The blood stains were becoming rare towards the door, of the room and, the last stain was at about 1 foot from the door. The surface of the pool of blood around the head of the victim was undisturbed. The blood stains beside the pool were, in his opinion, radiating from the head of the victim, and judging from the tails which they appeared to have, reached the floor in almost acute angle. A few stains gave him the impression that they had fallen from a small height. He arrived at this conclusion because they were round and vertical. They were very few, in the middle of the room, towards the door. There were also a few vertical stains in line with the left paper arm of the victim. Three similar stains were observed on a sheet of paper that was on the top of the appellant's office-desk in that room. One of these stains was caused by blood falling vertically and the other two after having fallen on the sheet of paper, were smeared by somebody. This witness collected blood sample from an open wound of the victim and from blood stains on the floor. He also picked seven fragments of bone which he found on the left side of the body, 2 or 3 feet away from the head. On the floor he saw locks of hair encrusted with dry blood. These locks of hair were compared with hair from the head of the victim and found to be in agreement in, details, that most of the hair of the locks had their edges forcibly cut and also agreeing in detail with thehair on the bones he picked at the scene. He left the scene when the body of the victim was removed for transportation to the Nicosia General Hospital, when he noticed that the area which was occupied by the head of the victim was clear of blood, that there was what looked like blood serum which exuded from the blood pool and that its diameter was more or less the same as that of the head of the victim. At about 14 hours of the 20th November, the house of the appellant was searched by the Police, but nothing incriminating was found. On the following day and at about 4 p.m. Insp. Frangos found, in the presence of the wife of the appellant and another police officer in the open site near a hen-coop and at a distance of 250 ft. from the house of the appellant, a metal container full of fresh soil and fresh chicken manure. This container had been seen a day or two prior to the offence, outside the yard of the house of the appellant by Periclis Georghiou and on the day of the offence his wife Efthyrnia, saw the wife of the appellant carrying it towards the witness's hen-coop where it was found by Inspector Frangos. Mr. Ashiotis examined the contents of this container and in addition to the fresh wet earth, feathers and chicken faeces, he also found remains of burnt clothing material, 4-5 half-burnt buttons and two pieces of half-burnt white material which looked like being a part of a towel and of a handkerchief. He could not find any blood on them, as the material was completely destroyed by burning and also having been soaked in water the blood must have seeped away. The burnt clothing material recovered from the container was put in a glass jar and eventually taken to Mr. Lovarides, the Government Analyst, for examination. He compared the burnt pieces of cloth, other than the handkerchief and towel like material, with a piece from the belt of the imitation suede, and after carrying out a test, he found that both were made of cotton and man-made fibre glued together, of the same weave, colour and characteristics. The trial Court had no difficulty, on the evidence of Mrs. Charal and Mr. Lovarides, in arriving at the conclusion that the belt belonged to the jacket that the appellant was wearing on the morning of the 20th November, when he went to hisoffice and that the half-burnt pieces of cloth found in the container belonged, to that jacket, and that the remains of the clothes found in the container were burnt before it was filled in with the fresh soil, the feathers and the chicken faeces, because of the fact that the internal walls of the container and its bottom were covered with soot. On the 21st November, a post mortem examination on the dead body of the victim was carried out by Dr. A. Kyamides, a Government Pathologist. Hisfindings, in so far as the injuries were concerned, were the following: "(a)On the left aspect of the forehead and on the scalp there was a vertical cut wound, 4" long, 1/2" wide, deep into the brain substance; (b)On the middle region of the forehead involving the right eyebrow towards the scalp there was a cut wound, 5" long, 1/2" wide, deep into the brain substance; (c)On the vertex of the skull, between the aforementioned wounds (

1. a)and (b), there were two smaller cut wounds near each other, the one 2" long and the Other 1½ long, deep into the skull bone, which was fractured; (d)On the left aspect of the forehead there was a cutting wound starting from the left eyebrow, going horizontally through the forehead and reaching the far end, 4" long, 1/2" wide, and deep into the brain substance; (e)On the left aspect of the skull, posterior region, there was a cut wound, about 2" long, 1/2" wide; deep to the bone, which was a superficial cut; (f)On the right corner of the mouth, involving the right cheek, was a cut wound, 2" long, 1/2" wide, deep into the mouth cavity and fracturing the lower jaw; (g)On the left corner of the mouth, involving the left cheek, there was a cut wound, 2" long, 1/2" wide, deep into the mouth cavity, fracturing the lower jaw, (h)On the chin there was a cut wound, 2 ½ "long, 1" wide, deep into the mouth cavity; (i)On the anterior aspect of the throat, at the region of the larynx, there was a linear bruise, 1" long, 1/4" wide; (j)On the lower region, anterior aspect of the chest, there was a linear bruise 2" long, 1/4" wide; (k)On the dorsolateral aspect of the left hand, near, the small finger, there was a cut wound, 1" long, 1/4" wide and 1/2" deep into the underlying fractured bone; (
2. l)On the dorsolaterat aspect of the right hand there was a cut wound, 1" long, 1/2" wide and 1/2" deep; (
3. m)Internally the brain substance was damaged multiply and free blood was, in the cranial cavity; (
4. n)The stomach contained little quantity of digested food". In his opinion, the aforesaid wounds were caused by forcible blows with a heavy cutting instrument and the cause of death was due to laceration of the brain substance. Four photographs which the trial Court described as purporting to show the injuries of the victim, were taken by P.C. Akamas, on instructions from Dr. Kyamides. They were numbered 1-4 (exh. 9). The trial Court came to the conclusion that, neither the evidence of Dr. Kyamides, nor the photographs taken gave a complete and accurate picture of the injuries on the victim. In particular injury (
5. d)above, was found to be inaccurate and incorrect, as the photographs revealed no such injury to the left side of the forehead. The trial Court, on the expert evidence before it, came to the conclusion that the death must have occurred within two or three minutes after the infliction of the wounds on the head of the victim, and was accelerated by some blood going into the wind-pipe when the victim was lying on his back with the chopped wounds on the, face. The leathal weapon was not found, inspite of extensive searches carried out by the Police at the scene, at the house of the appellant, the routes followed by him and in their vicinity. The opinions of both Dr. Kyamides and the British expert, Dr. Simpson, to whose evidence I shall be shortly referring in extenso, coincide on the fact that the wounds on the victim were caused by forcible blows with a heavy cutting instrument. Dr.Simpson went further to say that it was one of the choppingvariety with a cutting edge and some weight, such as an axe or chopper. He disagreed, however, with Dr. Kyamides who was of the opinion that it was half an inch broad, as it was unsafe to rely on the Width of the wounds, because when a wound is caused, the skin gapes and you cannot tell therefrom the width of the instrument used. It was part of the case for the prosecution that the appellant was in possession of a chopper, and the evidence for that came from three witnesses, namely, Stavros Philippou, his wife Maroulla and Takis Kokkinos, who claimed to have seen such an instrument in a flat they rented from the appellant and the latter in the garage of the house of the appellant lying on a piece of fire wood. The credibility of these witnesses was forcibly attacked by the defence, on the ground that they had many differences with the appellant, the first two With regard to the non-payment of rents, and the latter with regard to annoying the wife of the appellant; a defence witness was called and testified to that effect. The trial Court did not find the differences between the appellant and the Philippou couple of such a nature, as to render their testimony unreliable. Likewise, although they accepted the evidence of defence witness Fridas, they did not consider it as sufficient reason for Kokkinos telling lies as to the existence of the chopper. They accepted the evidence of the three witnesses for the prosecution that the appellant possessed a chopper, as true, and that it was immaterial if the instrument used was found by the Police or not, so long as from the evidence, a chopping instrument or an axe, with some weight, was used to kill the victim. One wonders if the possession of such a common household appliance was so significant to be established. Professor Keith Simpson who is an M.A. Oxon, Doctor of Medicine at the University of London, Fellow of the Royal College of Physicians, Senior Home. Office Pathologist, a University Professor of Forensic Medicine, a Member of the Home Office Scientific Advisory Council, author of books on this field and editor of the current two volumes of "Taylor's Principles and Practice of Medical Jurisprudence", lecturer, specialist in forensic medicine with forty years behind him .and personal file records of more than 100,000 post-mortem examinations, was approached by the Cyprus Police for his professional assistance in the case Under investigation. For the purpose, hewas requested and attended, on the 16th December, the offices of the Cyprus High Commission in. London and there he met Inspector Adradjiotis who produced to him a plan of the S.E.K.E.P. premises, the bundle of photographs (exhibits 6-9), the post-mortem report of Dr. Kyamides and a pair of shoes (exhibit 16), which, on the following morning were examined in the presence of Inspector Adradjiotis, at New Scotland Yard Laboratory under filtered light and by photography. The photographs were taken in his presence and are exhibit 102. Inspector Adradjiotis further recounted to him such evidence as he knew of the case, in his capacity as a police officer, so as to set the background for him. He was asked a number of questions and in particular, if he could reconstruct the course of events that had ended in the victim lying there dead where he was found. The plan in question (exhibit 2), was prepared by Inspector Seimenis to scale, several days after the removal of the dead body from the scene and it was based on measurements and information given to him by Inspector Komodikis. That was based on a rough plan the witness first prepared, but a comparison of this plan with the photographs in exhibit 6, reveals that it gives wrong measurements and information. In fact, Professor Simpson did no keep it he returned it to Inspector Adradjiotis without using it as material for his opinion. He only looked at it in order to get an idea of the layout of the premises where the dead body was found. The testimony of Professor Simpson runs into 74 pages of the transcribed record, of which 12 pages contain the examination- in-chief, and with the exception of five pages for the re-examination, the remaining 59 contain the extensive cross-examination of this witness by Mr. Gorman, the counsel who led the defence at the trial. As the full force of the argument of learned counsel for the appellant has been directed at the testimony of this witness, and the approach of the Court to it, I consider it essential to quote verbatim the relevant part of the judgment which deals with the testimony of Professor Simpson: "Professor Simpson told us that on the left shoe careful examination showed many blood spottings, some of which have run down the shoe. One of these spottings, in particular, has run down the left side of the shoe, in a liquid state and has tailed off underneath the sole of the shoe. Other spottings, notably those on the upper surface of thetongue of the shoe, are seen better, he said, in the coloured photographs. The left shoe, Professor Simpson said, shows a number of splashes with little spots of blood mostly down its left side and along the top on the right side. Some of these have dried up as spots. Some of the spottings that are seen over the tongue and on the left side have been smeared, possibly by the trouser touching them. One of them, a little larger clot of blood, had flowed down underneath the sole. We have already dealt with the evidence of Professor Simpson as to what, in his opinion, was the type of weapon used for the infliction of the wounds found on the head and face of the victim. In the opinion of Professor Simpson, the course of events that had ended in the victim lying dead where he was found was this:- The deceased must have at first been assaulted whilst standing in the region shown in photograph 12 where the locks of hair and a few drops of blood are seen. These locks of hair are an indication that these were from the first wounds the victim received. It was highly unlikely that the locks of hair found could fall from the weapon used because the weapon would by that time be heavily stained with blood and the Professor went on to say that if the victim was alert and able to see that he was about to be attacked, that is to say, if he was facing and able to see his assailant, he would raise his hands to his head in a protective way in an attempt to protect himself from the assault. This, the Professor said, explains the two shallow wounds found on the head of the victim and the injuries to his hands. The victim then partly disabled, perhaps by the first injuries he received, had either staggered or turned round to fall on his head on the spot where there is an area of blood and which appears in photograph 7 of exh. 6 on his right-hand hip region and then he fell and rolled onto his back to lie in the position he was found. Professor Simpson said that the more major injuries to the brow and face were virtually certain to have been inflicted, whilst the victim was lying on the ground, after he was perhaps unable to raise his hands because of the injuries he had already received. The splashing of blood, which is seen in the photographs of exhibit No. 6 around the head, on the floor, the waste-bin, the wall and further back on the chair, were caused by repeated blows whilst the victim was unconscious or partly unconscious. Two types of drops of blood are seen at the scene, Professor Simpson said, and these he would expect to be there. They are drops falling perhaps nearly vertically and drops, further away, perhaps, running or half-running splashes showing the pear shape or tailed shape which comes when the splashes strike the floor at an angle. These splashes were undoubtedly the result of wounds being repeated into a bleeding head whilst the victim was lying in the position he was found. He further said that when blood is welling up into the injured tissues and you strike that, the blood splashes. The Professor went on to say that the assailant must have been in that area in front of the chair which is virtually free of blood and which is shown in photographs 7 and 14 of exhibit No. 6. This area is on the right-hand side of the victim and except for a mark that looked like a footprint, which appears above the figure '14' of the photo graph and which Professor Simpson said must have been that of the victim, the rest of the area is virtually free from the splashing which is around the head, on the chair and the waste-bin. This fact, the evidence of Dr. Ashiotis to the effect that the stains on the chair were not so much on the edge but on the back of the seat, the fact that the chop ping wounds on the face were set almost straight across the mouth and were deeper on the right-hand side than on the left, are evidence that the blows were inflicted from the right-hand side of the victim and that the assailant was almost certainly in the free of blood area immediately in front of the chair and that the assailant was either standing, stooping or kneeling protecting that piece of floor from blood stains. Professor Simpson said that it is clearly certain, if not absolutely certain, that if he was right in that the assailant stood in the area,he described, that the left shoe of the assailant was nearest to the head from where the blood was coming; that, the stains appearing on the left shoe came onthat shoe whilst repeated blows were splashing blood from the head and face and that this shoe had taken the blood stains which might otherwise have marked the floor. The other shoe, he said, did not get stained because it was out of the way. It was at the time of chopping that the splashing occurred and Professor Simpson was almost certain that the assailant would have blood going onto his clothes. Professor Simpson said that the blood on the shoe did not get on it because it wiped against the bloody clothing of the body nor have the stains on it come from stepping into the blood because if the shoe had stepped into the pool of blood, he should see blood coming over the walls of the shoe and over the sole. The splashes on the shoe were quite inconsistent, Professor Simpson said, with the accused approaching the body as they are not smeared in any way as they would be by going close to the body and touching it. If that were the case, there would be markings down the sole. The splashes on the shoe are of the same type that are to be found on the floor and they must have gone on the shoe at the same time when those splashes were caused, that is to say, when the head wounds were inflicted. Dr. Simpson expressed the view that it might have been almost impossible to go near enough to the body to see it properly or feel it without marking the shoe on the floor or without smashing or spoiling any of the blood stains and he did not see any of them that have been squeezed out or pushed into a new shape on either side of the body. Professor Simpson excluded the possibility that the victim bad been killed in any other place and moved to the place where he was found because if this, happened, he would expect to see signs of the body being dragged or brought there or moved. The explanation he gave about the splashing getting on the shoe is really, he said, the only likely explanation and he could not accept any other acceptable explanation. As regards the blood found on the left sock, Professor Simpson said that he would be surprised if there was no blood on that sock. Professor Simpson was cross-examined for long on the opinions he expressed; he was also cross-examined rigorouslyon each and every particular or material whichhe had at his disposal and on which he said that he based his opinions. He was asked what is the practice that he himself follows in carrying out postmortem examinations, what is his method of obtaining the necessary information which will, help him to form his opinion .and he was also asked to tell us at what time he formed the opinions he expressed in this case. Professor Simpson in cross-examination, told us that the standards he sets for carrying out post-mortem examinations and for obtaining the information that will help him to form his opinions are higher than those supplied to him in the present case. He conceded that both the postmortem report of Dr. Kyamides as well as the photographs of the victim, exhibit No. 9, which show only a few of the wounds, were inadequate and not perfect in every respect but in re-examination he said that his conclusions were based on the evidence he had and though it may have been inadequate in some respects, in general it set out the facts that he needed clearly enough for him to form his opinion. The defence suggested to the Professor two alternative ways by which blood could, drop on the left shoe of the accused. The first alternative is that drops could land on the shoe by lifting the head of the victim and dropping it in the pool of blood. This alternative Professor Simpson rejected after he explained that if the head was dropped even, in blood, that was still liquid, then there might be some displacement of blood but not spraying into the air which is, evident from, spots found on the shoe If this took place, he said, then he would expect to find a lot of blood in the area of the sole of the shoe. Fresh blood, he said, in the circumstances suggested by the defence, would go sideway's at about that same level and he would expect to find blood on the part of the shoe that was closest to the floor. Blood could not be lifted into the air as high as the shoe and then drop on it. Blood in order, to drop on the shoe bad to rise above it and drop on it. The second alternative suggested by the defence was that the blood that was found on the shoe could be the result of the accused shaking his hand. With this alternative the Professor agreed but added that the shaking of the hand in order to produce the fine spots that werefound on the shoe had to be with the fingers spread, the hand had to be over the left side of the left shoe, it had to be quite heavily stained with blood and the blood had to be running blood and not blood smeared on the hand or in jelly form. Professor Simpson also said that spots could also get on the shoe if the head of the victim was shaken but no such allegation was put forward by the accused, and we need not, therefore, examine in our judgment this possibility". I revert now to the movements of the appellant on the day of the offence as from the time he was seen by Vartholomeou leaving the premises carrying some papers under his arm and when he told her that he would be returning in half an hour, and not to forget to clean the basement, until just before 11.50 when he was seen by Sgt. Paphitis arrive in his Alfa Romeo car at the back of the S.E.K.E.P. premises. In this respect, there is the evidence of several witnesses who saw the appellant at different parts of the town, and the statements of the appellant himself, regarding his movements. After the appellant was remanded in custody by the Court, he asked to make a statement which, as he said, should have been made the day before, so that certain points should be clarified, but which, on account of his psychological state was unable to do, and intended to give the statement, having seen his lawyer. This is exhibit 34 and reads as follows:- "After the threatening telephone call to my colleague Kimon Charal yesterday, 20th November, 1975 by unknown person or persons and after short conversation with Kimon Charal and after he requested me to go to the kindergarten of his son and to Parissinos quarter for the discovery of possible suspicious material for the safety of his son, I did it. On my return from the Parissinos quarter, I circulated with my car in the vicinity of our offices, and after I parked my car I returned to my office. When I entered our office I found the body of my colleague Kimon Charal with the wounds. On seeing him lying in the blood, I was shocked and with mechanical movements I approached the body and bent over it. At the same time I noticed blood on my right hand and after from the blood and the state of the body which had been hit and connecting the crime with the relevant telephone call which he had received that morning, I ran away. On leaving, I went to my houseunder shock from panic, with mechanical movements I changed clothes, took the Alfa Romeo car, as it was in the road outside the garage, and mechanically I went to the Bank, Post Office and returned to my office where I found the Police, I mean you, Mr. Aristocleous and others. On strict instructions from my lawyer I shall not reply to your questions or make any other statement. I intend to put to you certain questions for clarification of the points you stated. Are you prepared to answer? Answer: I am obliged on account of instructions from my lawyer to refuse to answer". When formally charged (exhibit 16), his reply was, "I have already given you statements with regard to this subject, and whatever I have to say, I shall mention it to the Court. I am innocent". The next statement of the appellant is the one he made from the dock at his trial, when called upon to defend himself. It reads as follows: "Your Honour, Kimon Charal was my best friend. I did not kill him. This I have continuously mentioned to the Police ever since and during interrogation. On the 20th November, I went to the offices of S.E.K.E.P. in the morning as usual, where I met Kim. Just after nine I went to the Supermarket Store nearby where I purchased two cartons of milk and a packet of cigarettes. I returned to the offices of S.E.K.E.P., went into the kitchen and made drinks; nescafe and tea. Then I returned to the office, our office, where I gave the nescafe and the cigarettes to Kim. Seeing that he was disturbed, I asked him what was wrong and he mentioned that he received a threatening phone-call a while ago and that they asked him to go to the Parissinos area. While drinking our drinks, he requested that I pay a visit to the area of the kindergarten of his son and also to the Parissinos area, to see or observe anything suspicious or of a suspicious nature. I did so, leaving the office about 9.30. Before leaving, I mentioned to the cleaner that I would be out of the office for about half an hour and left. I returned back to the offices of S.E.K.E.P. around 10 o'clock and upon entering the office, I saw Kim on the floor in a pool of blood. I was shocked and I went near the body and tried to lift the head up. The wounds were so horrible and I dropped the head on the floor. My hand, which was full of blood, I shook trying to get rid of it, feeling sick Then being panicked I ran out of the office, at the same time wiping, my hand on my jacket. I went into the car and drove off. I was mixed up, I did not know what to think, but I thought that now. That I saw the body, touched it with blood on my hand, the Police will suspect me. Also I was the only one in the room with Kim. I went home; I changed jacket and trousers and returned back to the offices of S.E.K.E.P. There I realised that my fears that the Police, would suspect me were real, because their manner when they approached towards me was far from friendly. We walked later to the car-park and then we went to the Strovolos Police Station where I repeatedly asked for a lawyer to consult with, to give, me some advice as to what to do. The following day, I did see a lawyer and then I made a statement which is the truth. Your Honour, I did not kill Kimon Charal". The picture would not be complete if no reference was made to the statement of the appellant of the 21st November, 1975 (exhibit 33) when the Police signified to him, after question, their intention to question him. He answered one question regarding his duties at his work and when asked whether he was depositing the money he was collecting in the cash of the Council when received, his answer was, "I shall answer to all your questions when I come in touch with an advocate, and I prefer advocate Mr. Efstathios Efstathiou". It is opportune now to deal with the rest of the evidence and the findings of the trial Court regarding the movements of the appellant on that tragic morning. We have seen him leave the premises of S.E.K.E.P. with the papers under his arm and remark to Maria Vartholomeou that he would be returning in half an hour and not to forget to clean the basement. For the purpose of ascertaining the time this incident happened, Sgt. Paphitis timed Maria Vartholomeou on the 1st December, whilst performing the same work she did on the 20th November, but the trial Court felt that it could not rely as regards time either on the evidence of Maria Vartholomeou or on the timing of her work by Sgt. Paphitis, as it left a gap of35 minutes between 10.10 hours when she must have finished her work, according to the witness's timing and the unquestionable time of 10.45 hours when witness Andreou went to the S.E.K.E.P. premises and I say unquestionable because about five minutes later, this witness met Police Sgt. Myriantheas at the Central Bank premises nearby and the discovery of the dead body of the victim was reported over the phone to the C.I.D. The trial Court came to the conclusion that the appellant must have left the offices of S.E.K.E.P. at about 10.05 hours and that at that time the victim was already dead. It arrived at this conclusion having considered the testimony of a number of other witnesses. Efthymia Pericleous, almost a next-door neighbour of the appellant, on her way home, saw the wife of the appellant driving the white Alfa Romeo car; they stopped, had a chat in the road and. shortly afterwards she went to the house of the appellant where they had coffee and breakfast on its back verandah. Whilst there, she heard the sounding of a horn and the wife of the appellant left her and went to the front of the house. On her return, the witness left and saw the appellant driving away in the small Honda car. About ten minutes later, whilst at her house, she saw the appellant return to his house, stay there for another ten minutes and then, she heard and saw the wife of the appellant drive the, Alfa Romeo car and park it outside the gate of their house, with which the appellant drove away; Efthymia then went to her house. Shortly afterwards she heard foot-steps and saw the wife of the appellant carrying a barrel, in effect the metal container in which the burnt clothing of the appellant was found later by the Police. On the other hand the appellant was seen by Charalambos Sofocleous, the butcher, driving the Alfa Romeo car along Athalassa Avenue towards Strovolos. From the, various distances and the time that it normally takes one to cover them, and the time the witness left his shop, the Court came to the conclusion that the time when the appellant was seen by this witness could not be later than 10.45 hours. From this, the Court substracted the time of 14 minutes that it takes one normally to drive from the premises of S.E.K.E.P. to the house of the appellant and the time he was seen spending to, from and at his house by Efthymia Pericleous, and the time it took him to reach the- spot where he was seen by Sofocleous, and arrived at the conclusion that the appellant left the premise of E.K.E.P. at 10.05 hours. From his house, the appellant went to the Central Co-operative Bank and met Savvas Charalambides, the secretary of the Co-operative Savings Bank and the Loans to Student's Fund. He stepped into the witness's office, he said good morning and asked about some rules regarding a scheme for sickness benefits for the staff of the Co-operative movement, as they would use them as a model for the staff of S.E.K.E.P. Apparently, before he had visited this witness he had gone to the second floor of the officer of the Co-operative Central Bank, where he met witness Michalakis Eracleous of the Co-operative Central Bank, according to whose testimony the time must have been between 11.30 and 11.45 hours, to make a lodgment for the S.E.K.P. It consisted of one lodgment for the current account of the provident Fund of the employees and the other one in the deposit account. The appellant, however, unlike previous occasions when he would himself fill in lodgment slips, on this occasion, being in a hurry to go to the third floor, he left two cheques with witness Eracleous and the lodgment slip were completed, one by this witness and the other one by a colleague of his. Five minutes later, he was seen by this witness leaving the Bank. According to the appellant's own testimony, he also called at the Post Office and then went back to the scene, though he knew as from 10a.m. when he returned from his alleged trip to Parissinos and the kindergarten, that his colleague and friend had been chopped to death of all the days that he had to find out if the Regulations for the medical care of the Co-operative Officers were ready so that they would be used also .for the S.E.K.E.P. employees, he had chosen that fateful, day. to hurriedly make certain payments into the accounts of S.E.K.E.P. and the Provident Fund of his employees and visit witness find out about Regulation that should really not have been given such priority and importance than going back to the scene of the crime and find out about the developments regarding the death of his friend and colleague. The motive for this brutal crime was found to be the state of the accounts kept by the appellant and the deficits of the cash in hand. The so-much postponed. audit took place as part of the Police investigations and a deficit amounting to £47,249.- was discovered, for which the appellant was solely, responsible Also, a number of cheques which were given to the appellant for the payment of S.E.K.E.P. products sold to them, were paid into the personal account of the appellant or the account of ELIANA CO. LTD After the murder, eight uncashed cheques given to the appellant in payment of olive oil, bought by prosecution witness Afxendis Petrou of the total value of £26,000.- were found locked in one of the drawers of the appellant's desk They had been received by him long before the murder was Committed and they were not deposited in the: bank account of S.E.K.E.P. The audit for the year1973 which was carried out during the coup d'etat and the Turkish invasion in July 1974 was not very thorough and debts amounting to £28,000 were not in fact verified by the accountants In June-July, 1975, Charalambous, the Manager, checked the books kept by the appellant and noticed that he had made no entries in them for the preceding three months. . He asked explanations from the appellant who said that it would be a matter of days for him to make the necessary entries in the accounts and bring the books up-to-date In October, 1975, employees of Yiamakis carried out a preliminary audit of the books kept by the appellant and it was found that although the receipts of money collected had been entered in separate loose statements, the invoices for these sales were missing and when, the appellant was asked about them his answer was that they were not available as they remained at Kyrenia where they had been taken for checking purposes. The allegation of the appellant about the missing invoices was the subject of a discussion between himself and Yiamakis. There were missing entries in the loose leaf sheets and generally speaking the books kept by the appellant were untidy as compared with the books kept by the victim which were in perfect order and properly kept and which were not needed by the accountants for preliminary audit, but they would be vital during the final stages of the audit, as would verify the accounts kept by the appellant and in "particular the collections of money from sales. The trial Court found that the appointments, made for the visit of the auditors at the S.E.K.E.P. premises for the purpose of auditing the accounts were, on several occasions, adjourned at the instance of the appellant. The trial Court further Observed that "these books therefore, could prove to be a very unpleasant source of information against the, appellant when checked and audited and wouldexpose him, coupled with the presence of the victim, who could be a further source of information, a live one, and who could verify the entries he had made in his books to the auditor and to the Board of S.E.K.E.P. these would be damning evidence against the accused because then these books would not be just mere numbers recorded on sheets of paper which the accused could easily say that he had no, knowledge of If the victim got out of the way, the accused could stick to his version that the invoices had been lost in Kyrenia and nobody could question his allegation. The victim, was, therefore, the stambling block for the efforts of the accused to conceal his embezzlement and, if alive, he could further disprove accused's allegation that the invoices were left behind at Kyrenia and that was the reason that they were missing. The victim definitely knew that no invoices or receipts were left behind as he was the supervisor of the accused and he had already entered their particulars in his books". The trial Court then considered whether this deficit and the state of the accounts kept by the appellant might be considered as a possible motive for him to kill the victim and on this point it concluded: "Having considered the evidence regarding the deficiency, the conduct of the accused during the period that the auditors were ready to carry out the audit, i.e. the postponements of the appointments with the auditors at his instance and the fact that on the day the murder was committed, Yiamakis would visit S.E.K.E.P. for the final stage of the audit, we find that the accused had a possible motive, in fact a strong motive, to kill the victim. One may wonder, and the defence has made a point of this, that if this was, the motive for the accused to kill the victim, why he left" the books that the victim kept behind him. The defence has suggested that these books in themselves might afford evidence implicating the accused, with, the deficiency and one would have expected the accused guarding against such probability to take away the books and destroy them. We feel that if the accused had at that moment taken the books away, it would be as if he was pointing his finger to himself as the killer and would have given the police good cause to treat him as the- No. 1 suspect. Considering all the above, we find that the prosecutionproved that the accused had a strong enough motive for wanting to get the victim out of his way". The alternatives suggested by the defence as to how the blood spots found on the shoe of the appellant got there, were examined by the trial Court, on the basis of the evidence before them with a view to ascertaining whether any one of them could be accepted in lieu of the "original opinion expressed by Professor Simpson". In that respect, they examined the contents of the statement of the appellant to the Police (exhibit 34), hereinabove set out, his unsworn statement before them, as well as the, rest of the evidence. The suggestion that blood could drop on the shoe of the appellant when he released the head of the victim and it fell on the ground, was dismissed, not only because of the opinion of Professor Simpson, but also because of the findings of Mr. Ashiotis who noticed, after the body was removed, that the area which was occupied by the head of the victim was clean of blood. The other alternative to the effect that the blood spots found on the left shoe could be the result of the appellant shaking his hand, was also rejected by the Court. Professor Simpson said that for that to happen, the blood shaken from the hand, must have been running blood, not smeared on the hand and not in jelly form. The hand had to be shaken with the fingers spread and it had to be over the left side of the shoe and had to be heavily stained with blood, which meant that the appellant should have arrived at the scene of the crime when the blood was still in liquid form. Further, the foot at the time the splash landed on the shoe and ran down to reach the instep, must have been resting on the toes. This splash must have taken quite some time to reach the instep of the shoe or very near its top, in fact, much longer time than when the foot remains on the toes when one walks. Even if the accused was standing with the whole foot resting on the floor, the flow of the splash could not be oblique, but it would be vertical and also, had the appellant shaken his hand whilst standing, it could not be possible for the splash to get on the left top of the shoe and the sock, as that part of the shoe and the sock would be covered by his trousers. The claim that the appellant was standing at the left of the victim, was also dismissed, as there were splashes and spottings of blood covering the area and none of them were tampered with, trodden upon, squeezed out or pushed into a new shapewhich would have happened had the appellant approached the victim from that side. The trial Court also concluded, and that, having regard to What had earlier been said by it, that the only possible explanation which, in their view, was a certainty, was that the appellant was standing at the clear area in front of the chair, to the right of the victim, and that the stains that got on his shoes and on his sock dropped there, whilst he was repeatedly assaulting the victim and that by standing there he prevented with his legs and body, the splashing of the blood of the victim onto the floor. The trial Court made further a number of findings regarding the conduct of the appellant on the day of the murder which, conduct, revealed an effort on his part to avoid being implicated in the crime and in. order to lead the Police to a wrong track, by attempting to build, up an alibi, to conceal facts and tell lies. In this respect, it was pointed out that although the appellant was himself alleging in his statement to the Police (exh.34) and his evidence in Court that he had seen his colleague and friend dead on that morning lying in, a pool of blood, yet, he pretended ignorance when he met on his return to S.E.K.E.P Sgt. Paphitis and merely asked if his colleague had been assaulted. He pursued that pretence when soon afterwards he met witness Koumides. His explanation for that was that he was afraid that he would be suspected by the Police and he said, in fact, his fears proved to be well founded, judging from the unfriendly manner, as he claimed, the Police approached him. Also, he was not telling the truth, when asked by Chief Super intendent Aristocleous as to how he left the office on that morning, he said, that he did so in his Alfa Romeo car, whereas the truth was that he left in the Honda car, an opportunity used to dispose also of the weapon that he used to kill the victim, which, weapon, was the chopper that had been seen by the Philippou couple and Kokkinos. In fact, later in their judgment they made a. finding that the heavy chopping instrument with which the killing was committed, was brought to the S.E.K.E.P premises, was not one that was available:, there and that it was taken by the appellant to the office, the latest on the morning of the murder. They concluded also that the appellant. after killing the victim, went to his office desk holding the chopper for the purpose of wrapping it up, hence the Police found on a piece of paper on the desk one round vertical and two smeared drops of blood, and that the papers he was seen by Vartholomeou carrying when he left, contained the leathal weapon.They further dismissed his claim that after he found, his friend murdered he acted with mechanical movements, both when he approached the dead body and when he went home and changed his clothes, changed car and visited the Post Office and the Co-operative Bank for purposes, as already seen, that were neither pressing nor necessary and could only be explained as an attempt on his part to build up an alibi, behaving at the same time coolly and without any indication of shock or nervousness. They did not-also accept as true the allegation of the appellant that he went to the kindergarten of the son of the victim or to Parissinos quarter. Learned counsel for the appellant has argued at length that the findings of the trial Court that the appellant delivered on the victim the fatal blows and/or that his left shoe was stained with blood whilst he was delivering the fatal blows and/or with regard to his position whilst so delivering them, were wrong, for a number of reasons. To put it briefly, it was claimed that it was Professor Simpson who tried the case and not the Court; that they failed to evaluate his evidence and test the accuracy of the conclusions of this expert and in fact the conclusions of the court were those of Professor Simpson who was considered by the Court, according to counsel, as ,possessing supernatural powers; they failed to draw their own independent conclusions as to how the, fatal blows and by-whom were delivered; that the opinion and the conclusions of Professor Simpson were based not on proven facts but on the assumption that the appellant was the culprit and on inaccurate and mistaken material, such as the photographs of the scene and the post mortem report and also on material, the correctness of which could not, be tested either by the expert or the Court. It was urged, that Professor Simpson started with the idea that the appellant was guilty by proceeding on the assumption that he who wore the shoe was the assailant. It was also argued that this witness changed his opinion n the course of his testimony and that at parts he was more positive and at others not so. In the second set of arguments it was claimed that the trial Court failed to examine the totality of the evidence and in particular, that which was equally consistent with the innocence of the appellant. For that purpose, reliance was placed on the fact that a third alternative put to Professor Simpson with which this witness agreed and which was to the effect that the spots on the left shoe (exhibit 16) could also get thereon if the head of the victim was shaken, was not examined, by the trial Court because, as they say in their judgment, no such allegation was put forward by the appellant. Another set of arguments relates to the findings of the Court as to the lethal weapon, the possession of a chopper and the evaluation of the evidence on this issue, the conduct of the appellant and the, failure of the trial Court to examine the friendly relations that existed between him and the victim. Also, the situation of the scene of the crime as regards the road and its accessibility to various people which rendered improbable the commission of the offence by the appellant who, working there, was aware of all these circumstances that could enable one accidentally to witness its commission and, therefore, unwise for him to commit same. In view of the role that the expert evidence has played in this case, I consider it pertinent to summarize, the law on the matter. As pointed out in Cross on Evidence 4th Ed. p. 384, "the Courts have been accustomed to act on the opinion of experts from early times. As long ago as 1553 Saunders, J., said: "If matters arise in our law which concern other science or faculties we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation". (Buckley v. Rice.-Thomas

(1554), 1 Plowd 118, at p. 124). Of course, it was much later that expert witnesses began to play their modern role and progressively more and more use is made of them, consistent with the progress in the field of science. The functions of expert witnesses were stated by Lord President Cooper in Davie v. Edinborough Magistrates

(1953)S.C. 34 at p. 40, where he said, "their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the, Judge or jury to form their own independent judgment by the application Of these criteria to the facts proved in evidence" of course, an expert's opinion must be based on facts proved by admissible evidence. In R. v. Mason, 7 Cr. App. R., 67, a trial for homicide, anexpert medical witness, who had not seen the dead body but had heard its condition described by witnesses in Court and where the defence was that the deceased had committed suicide, was asked whether it was his opinion that the fatal wounds had been inflicted by someone other than the accused. It was held that his evidence was clearly admissible and was rightly dealt with in the summing up as an opinion based on an assumed state of facts. This principle is to be found also in the case of Mitas v. Rex, 18 C.LR. p. 63, where, in respect of the evidence of an expert who had not seen the corpus delicti was said that evidence of that kind must clearly be received with the greatest caution and it is usually given with no less. The Mason case, however, (supra) has also, in my view another significance, because of the phrase "on an assumed state of facts" appearing at the end of the judgment. It suggests, that experts inevitably have to be asked questions requiring them to assume the existence of certain facts, and it is for the Court to determine, on the evidence adduced before it, about their existence or not, as at the stage of giving evidence, an expert can only assume of their having been proven. In this respect, the danger of the expert usurping the functions of the Court is avoided, inasmuch as the determination of the facts upon which a conclusion may be drawn, is made clear, that it is left to the Court. This is why I see no objection to a question against which extensive argument was advanced on behalf of the appellant. This happened when, in the course of his testimony, Professor Simpson was asked as follows: "Considering the position of the body, as it is shown in the photograph, exhibit 6, the nature of the wounds, the distribution of the blood around the body and the stains on the shoe, on the left shoe, exhbit16, and assuming that the, left shoe was worn by the person who was at the scene and that the blood on the shoe was human blood belonging to the victim, can you tell the Court how the blood found its way on the shoe?". His answer was, "I think it is clearly certain, if not absolutely certain, that if I am right in that the assailant stood in that, area, his left shoe was nearest to the head where the blood was coming from". And then he went on to say that "whilst repeated blows were, splashing blood from the head and. face this shoe has, taken the blood stains which might otherwise have marked the floor. And the other shoe having none, was out of the way, further away and not likely to be stained". The use of the phrase "assuming that the left shoe was worn by the person who was at the scene", suggests, to my view, not the conclusion that the appellant, who, according to the evidencewas wearing that shoe on that ftefu1 morning but assuming the Court will reach that conclusion how was it blood stained, a matter which presupposes expert knowledge within the field of the Witness's science. Two more cases may be worth mentioning. The one is R. v. Lanfear [1968] 1 All E.R. 683, where Diplock L.J. said, that "The evidence of a doctor giving medical testimony at a criminal trial, should be treated, as regards admissibility and other matters of that kind, like that of any other independent witness, but, though a doctor .may be regarded as giving independent expert evidence to assist the Court, the jury should not be directed that his evidence ought, therefore, to be accepted by the jury in the absence of reasons for rejecting it". The Other is R. v. Turner [1975] 1 All E.R p. 70 where it was held that an expert's opinion is admissible to furnish the Court with scientific information which is likely to be, outside the experience and knowledge of a Judge or jury. Provided, however, that if on the proven facts a Judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. Relevant is also the remark of Lawton, 1.

1. at p. 74 that "The fact that an expert witness has impressive scientific qualifications, does not by that fact alone, make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves". Having considered the evidence of Professor Simpson in the context of the totality of the evidence and the manner approached by the trial Court, I have come to the conclusion that it was given no more importance either because of the witness's impressive qualifications arid long experience, or on account of its substance than it deserved, to be given because of its positiveness son all material, aspects on which the Court relied and the impartial and fair manner in which it was given. In fact, the main alternative upon which the defence has tried to build up their own case, comes from the witness who did not exclude the possibility of the splashing of the blood on the left shoe being caused by the shaking of the head of the victim, it is rather ironic, than the testimony of a witness so forcibly attacked as being self-contradictory at parts and containing elements of uncertainty should be also sought to be relied in support of the innocence of the appellant. This evidence constituted a link in the chain of circumstantial evidence whichthe prosecution built around the appellant. It is not correct to say that the trial court accepted only those parts of the evidence of Professor Simpson which were tending to show the guilt of the appellant and not the contrary. The trial Court examined the whole of the evidence of this witness, and it dealt with it in extenso, that can only be explained by the length at which this witness, was cross-examined, suggesting also, the importance the defence attached to this link, of circumstantial evidence. This witness never failed to allow room for doubt and use words like, likely", etc. where that was possible on the scientific tests he was using. But that does not make him, as suggested on behalf of the appellant that it, was not the sort of evidence that could, be relied upon. On all material points his testimony was unshaken and duly supported by the proven facts of the case. It is correct that the Common Law rule is that an expert witness may not be asked the question which the Court has to decide, although, as pointed out in Cross on Evidence (supra) at p 388, "several criminal cases suggest that it is being eroded", yet, in the present case, it cannot be stated that Professor Simpson was asked to answer the very issue that the Court had to decide. As already pointed out, the evidence of Professor Simpson, was a link in the chain of circumstantial evidence which the Court accepted and upon which it made definite findings most of which have already been referred to in this judgment. With regard to the complaint that the trial Court failed to examine the possibility of the splashing on the left shoe and socks of the appellant having been caused by the shaking of the head of the victim-a possibility not excluded by Professor Simpson-it should be pointed out that the trial Court followed this course as a consequence to its finding that there was nothing in the evidence leaving room for such possibility. This was particularly so after it excluded the claim that the appellant on seeing his colleague dead, was shocked and acted mechanically thereafter. Therefore, this is not a case where a trial Court bound as it is, to consider not only the theory of the prosecution but also any alternative theory that is possible and consistent with the evidence it failed or refused to do so or did not do so adequately, as pointed out in R. v Turkington, 22 Cr. App R. p. 91, where it was held that the Court was bound to consider not only the theory of the Crown, but also the theory that was strongly urged on behalf of the defendant and that if that alternative theory was possible and consistent with the evidence, the appellant was entitled to be acquitted. But of course, the alternative theory has to be possible and consistent with the evidence, which was not so after the finding of fact made by the trial Court. In fact, in the Turkington case there was evidence by the appellant and nothing to contradict it as to the circumstances the fatal blow was delivered on the victim in that case. Nor is it a case where the trial Court failed in its undoubted duty to deal adequately with any other view of the facts which might reasonably arise out of the evidence and the material before them, as it is on the evidence and the evidence alone that an accused person is being tried. (See Mancini v. Director of Public Prosecutions [1942] A.C. 1). In this case, there was no material left to be examined after the trial Court ruled out the possiblility of the head having been shaken mechanically through the shock of the appellant and after accepting the rest of the evidence which connected the appellant with the commission of the crime rather than with being the person who discovered the victim in that dreadful state. But I shall be referring further to the Mancini case cited with approval in the case of Dervish Halil v. The Republic, 1961 C.L.R. p. 432, when I shall be dealing with the question of premeditation and the possibilities, if any, of there being any provocation or other circumstances that could reduce the offence from premeditated murder to homicide. Suffice it to say now, that in view of the very statements of the appellant and the findings of the trial Court already referred to, it would be a mere speculation to say that the splashing on the left shoe of the appellant was caused by a mechanical shaking of the hand which the appellant though being shocked did not notice, hence he did not speak about it. It was argued that .the trial Court treated the, evidence of Professor Simpson as if it were a gospel and tested the rest of the evidence with it. In this way, the trial Court misdirected itself on the burden of proof which is on the prosecution, by shifting same on the appellant in such a way as he was expected of him to establish his innocence. I have already dealt with the significance of the evidence of Professor Simpson and the way the Court approached same. This proposition is not borne out from anything said in the judgment of the trial Court. No doubt, it is the duty of the prosecution to prove theprisoner's guilt and if at the conclusion of the trial, considering the totality of the case, there is reasonable doubt, then the prosecution has failed to make out a case against the accused who is, therefore, entitled to be acquitted. I need not cite the much quoted passage from the case of Woolminghton v. D.P.P. [1935] 25 Cr. App. R.
2. Of course, in criminal trials in which the case against the accused depends wholly or substantially on circumstantial evidence after the facts sworn are proved a Court must decide not whether these facts are consistent with the prisoner's guilt, but also that they are inconsistent with any other reasonable conclusion, other than that the prisoner committed the act. The reiteration of this principle is to be found in the case of R. v. Hodge [1838] 2 Lewin, p. 227, in the case of McGreevy v. D.P.P. [1973] 1 W.L.R. p. 276 at p. 282, as a case reported not because it laid down a new rule of law, but because it was thought to furnish a helpful example of one way in which a jury could be directed in a case where the evidence was circumstantial for which, as pointed out in Kenny's Outlines of Criminal Law, 19th Ed. 1966, p. 466, "no distrust. has been shown by English Law". It may be interesting to observe that in the McGreevy's case, reference is made to the painstaking research of counsel appearing for the appellant which showed that in some countries in the commonwealth both Judges and legal writers made reference to the "rule in Hodge's case" which was not given such very special prominence in the home to the Common Law, as observed by Lord Morris of Borth-y-Guest (at p. 282). One wonders if the Cyprus case of R. v. Mentesh, 14 C.L.R., 232 where at p. 245 reference is made to the Hodge's case and the principle laid down therein was one of those cases from commonwealth countries cited as an example of giving prominence to the Hodge's case, a situation which reveals the close links of our country the legal system of which stems from the English Common Law. Connected also with the burden of proof is the contention of the defence that the trial Court made up its mind too early about the guilt of the appellant and then examined the rest of the evidence. This is an argument relating more to the style and the manner in which a judgment is written rather than to its substance. Three experienced Judges having heard the evidence .day after day, for weeks on, reserved their judgment at the conclusion of the trial and delivered it some days later. It isonly reasonable to infer-and there is nothing in the judgment itself to suggest the contrary-that having deliberated they made their findings, drew therefrom their conclusions and arrived at the verdict they did and then they proceeded to write their judgment in the manner and following the sequence that they thought more proper in the circumstances and in view of the mass of evidence adduced. I cannot subscribe to the view that they really made up their mind too soon and then tested their conclusion with the rest of the evidence. In fact, as it appears from the judgment itself, they were all along comparing the various pieces of evidence, with what they thought was materially relevant to each other, as well as with the relevant parts of the case for the, defence. Having carefully and anxiously considered the findings of the trial Court and its conclusions drawn therefrom and bearing in mind the principles upon which this Court will interfere with such findings as set out in a number of cases, I have come to the conclusion that the appellant upon whom the burden of proof lay, has failed to persuade me that such, findings and conclusions, considering, the evidence on record properly assessed, are unreasonable. (See, inter alia, HjiSavvas alias Koutras v. The Republic

(1976)2 C.L.R. 13 and the authorities cited therein at pp. 57-58). The whole of the relevant evidence has been critically examined at length by learned counsel on both sides and it does not seem to me necessary to discuss it again. Suffice it to say that those circumstances accepted by the trial Court were not only consistent with the appellant having committed the act, but also the facts were such as to be inconsistent with any other rational conclusion. In addition to all other circumstances, there was evidence of motive which, as such, is immaterial so far as regards criminal responsibility in cases like the present one, as expressly provided by section 9 of our, Criminal Code, Cp. 154, yet, facts which supply a motive for a particular act "are among the items of circumstantial evidence which are most often admitted" (See Cross (supra) p 34) "It is always a satisfactory circumstance of corroboration when in connection with convincing facts of conduct an apparent motive can be assigned" (Wills on Circumstantial Evidence, 7th Ed. p. 64) though it is not necessary for the prosecution to adduce any evidence as to why an offence, and in particular a murder was committed. As pointed out in Vrakas and another v. The Republic

(1973)2 C.L.R 139 at p. 177 and after referring to the case: of. R. v. Treacy [1944] 2 All E.R. 229 at 232, "It was not, therefore, necessary that the Assize Court should have reached absolutely definite conclusions regarding the motive of each of the appellants; and it was open to the Assize Court to make findings about possible or alternative motives, constituting circumstantial evidence which tended, together with the rest of the evidence, to establish the guilt of each one of the appellants". Therefore, the claim that the appellant did not commit the act in question, fails. I turn now to the question of premeditation. By the introduction of the Criminal Code in 1928 and the provisions of section 3 thereof that its interpretation was to be in accordance with the principles of legal interpretation obtaining in England and expressions used therein were to be presumed so far as consistent with their context and except as may be otherwise expressly provided to be used with the meaning attached to them in English Criminal Law and be considered in accordance therewith, the door was opened to a concurrent reception of the English Common Law. This introduced also the concept of malice aforethought under the English Common Law, a fact, which brought strong opposition to the, enactment of the Code Ironically, some 33 years later, and upon Cyprus becoming independent, the concept of malice aforethought introduced by, the Criminal ,Code in 1928 was found to be unconstitutional as being inconsistent with the notion of premeditation to be found in Article 7.2 of the Constitution, whereby no person would be deprived of his, life except in the execution of a sentence of a competent Court following his conviction for an offence for which his penalty, is provided by law and a law may provide for such penalty only in cases of premeditated murder, high treason, piracy, jure gentium and capital offences under, military Law In, the case of The Republic v. Nicolaos Pantopiou Loftis, 1 R.S.C.C. p. 30 at p. 33, it was held that the word "premeditated" in the said context limited ,the imposition of death penalty to premeditated murder. The use of such words conveys the notion of premeditated murder, as understood by Continental legal systems, and in particular by the French Code Penal from which the above notion was adopted by the Ottoman Penal Code which applied in Cyprus until the enactment of the Criminal Code Order in Council in 1928. The Supreme Constitutional Court then adopted in thatconnection. the exposition of premeditation, as laid down in 1908 by the High Court of Cyprus in the case of R. v. Shaban, 8 .C.L.R. p. 82, at: p. 84, which reads as follows:- "The question of premeditation is a question of fact. A test often applicable in such cases is whether in all the circumstances a man has had sufficient opportunity after forming his intention to reflect upon it and relinquish it. Much must depend on the condition of the person at the time-his calmness of mind, or the reverse. There might be a case in which a man has an appreciable time between the formation of his intention and the carrying of it into execution, but he might not be in such a condition of mind as to be able to consider it. On the other hand, a man might be in such a calm and deliberate condition of mind that a very slight interval between the formation of the Intention and its execution might be sufficient for premeditation". The Supreme Constitutional Court was seized of the matter by the question having been reserved for its decision under Article 144 of the Constitution; it also expres