vital prosecution witness, before Coroner and trial Court-Expert evidence not safe or satisfactory-Reasonable or lurking doubt that conviction unsafe or unsatisfactory-Appeal allowed. Evidence-Expert evidence-Approach to-Court not bound to adopt views
an expert even if uncontradicted. Constitutional Law-Human rights-Rights
person charged with an
fence-Article 12.5
the Constitution. Constitutional Law-Death penalty-Constitutionality
-Articles 7 and 8
the Constitution. The appellant was tried at the Assize court
Larnaca
the
fence
premeditated murder. The ease for the prosecution was that on the night
April 5, 1973, in Larnaca, the appellant, acting in concert with two companions
his, namely Kakis and Neocleous, killed GeorghiosFotiou, by firing repeatedly with firearms at him in perpetration
a premeditated plan to murder him. It was the case for the prosecution that the appellant and his accomplices waylaid the victim at a spot at Thessaloniki avenue and killed him in perpetration
a plan, conceived long before the appellant found the opportunity to execute the victim; and that the details
the plan were worked out after extensive shadowing over a period
time designed to elicit the movements
the victim day and night. On the night
the murder the deceased was traveling in aconvoy
three ears, for safety reasons.; and whilst so traveling he accelerated and overtook the car
the convoy which was in front
him at the precise moment when the car
the appellant was seen travelling ahead
them and having done so to follow the appellant into Thessaloniki street. The trial Court reached the following conclusions, on the basis
which it convicted the appellant
premeditated murder and sentenced him to death. "1. The accused kept a watch on the movements
the deceased prior to 5th April, 1973. This watch enabled the accused to acquaint himself about the movements
the deceased 2. On, 5th April, 1973, the accused kept a, watch on the movements
the deceased, mainly in order to ascertain the hour at which he left work. 3. The accused and his companions emerged in front
the convoy
cars, including the car
the deceased, with the sure knowledge that the deceased was on his way home, expecting him to follow, as it was the deceased's habit, a route via Thessaloniki avenue. 4. The accused, acting in anticipation
the movements
the deceased, turned into Thessaloniki avenue in order to waylay him. The choice
the entrance
Thessaloniki avenue was such as to enable the accused to cause the deceased to bring his car to a standstill without much difficulty, considering that the speed
the deceased could reasonably be expected to be low at the time as he was at the entrance
the street. 5. Having entered Thessaloniki avenue, the accused emerged immediately into the middle
the street with a pistol in his hand in order to compel the deceased to stop. 6. The accused approached the deceased and demanded that he should alight. In the meantime his companions alighted, dangerously armed, taking positions round the car
the deceased making his escape impossible. At the same time they immobilized the companion
the deceased, NeofytosAndreou. The accused kept banging on the window pane
the deceased with his pistol and when the deceased persisted in his refusal to alight, locking his windows at the same time, the accused fired twice atthe deceased from close range, giving thereby a clear indication
what he intended to do with the deceased. When the deceased made a vain effort to escape, the companion
the accused, Kakis, and probably Clavdhios as well, fired at the deceased riddling his body with bullet wounds. 7. When the car
the deceased ended on the left side
the road in the circumstances we have described, the accused fired two more shots at the deceased, indicating thereby that he wanted to eliminate every possibility
the deceased surviving the injuries already inflicted upon him. The range from which the accused fired at the deceased and the circumstances under which he did so are indicative
his determination to kill the deceased. "The wounds caused by the two contact shots referred to in evidence were inflicted upon the deceased by the accused." One
the eye-witnesses, whose evidence was
vital significance in relation to conclusion No. 7 above, was prosecution witness 7, (Georghiades) who stated before the Assize Court that after the car
the deceased came to a standstill on the left side
the road he saw the appellant firing two or three shots at the deceased, who was still sitting in the driver's seat
his car, almost from point blank range. This same witness when giving evidence at the inquest almost twenty months earlier said nothing about seeing the appellant firing the contact shots or any shots at all. What he said with regard to the appellant was that he saw him holding a pistol in his hand. The trial Court stated that this witness "told the Assize Court the truth about what he witnessed that, night" and that his evidence was also supported in material respects by the evidence
the ballistics' expert (prosecution witness 39, Christofides). The ballistics expert was shown for the first time the jacket that the deceased was wearing on the night
the murder in the course
the hearing before the Assize Court and was asked whether in his opinion, two
the holes in the jacket had been caused by the contact shots. The jacket had been in the possession
the Police for almost four years and the witness himself stated in evidence that if he were to give an expert opinion scientifically the exhibit should have been submitted to him theearliest possible. He further admitted that in some cases it was necessary to ascertain the existence
gun-powder but where there was a tearing
the cloth and the signs
gun-powder residue were evident a chemical analysis might not be necessary Asked whether by looking at the two holes on the exhibit jacket he could say that there was residue
gun-powder or evident signs that they had been caused by shots the witness replied that there was blackening round the holes "which resembles very much with signs
gun-powder" but he could not say with the naked eye whether there was unburnt gun-powder As regards the nature
the wound caused by a contact shot the witness stated that it is the laceration
the wound which is a characteristic
a contact shot but he admitted that be was never given a detailed description
the wounds which corresponded to the two holes on the jacket which were allegedly caused by contact shots but that he had the opportunity to see once a, booklet
photographs which showed the wounds on the dead body but he never had a detailed description such as .the diameter
the entry and exit wounds and their details. The trial Court accepted that the ballistics' expert was, a witness
truth and a reliable Witness. Another witness (Andreou) in his testimony before the Coroner and the preliminary inquiry testified that the appellant had fired the shots after the deceased started
f from his stationary position. In his evidence before the Assize Court, however, he stated that the appellant fired twice at the victim and then after the two shots the latter tried to leave the scene. During the trial and before the ballistics' expert had given evidence counsel for the appellant sought the directions
the Court on the possibility
the costs
expert witnesses in relation to firearms, who would be consulted and probably called by the defence being paid by the State The trial Court held that the relevant provisions
the Constitution (see Article 12 5) safeguarding fundamental defence rights do not confer power to authorise the payment
the expenses that may be incurred for the consultation and calling
expert witnesses out
public funds; and reached the conclusion that it had no power to give directions in relation to a matter beyond its competence. Upon appeal, against conviction counsel for .the appellant mainly argued: (a) That the conviction was, haying regard to the evidenceadduced unreasonable or unsafe because in the absence
scientific tests; the Court wrongly relied on the evidence
the ballistics' expert as regards the contact shots. (b) That the, judgment
the Court should be set aside on the ground
a wrong decision on a point
Law, viz. that there was sufficient circumstantial evidence against the appellant that he planned the murder and because the finding
premeditation had not been proved beyond reasonable, doubt (i.e., that appellant took the decision to kill the victim at GrivasDigenis Avenue at a time prior to the events, at Thessaloniki Avenue). (c) That the Court was wrong in turning down the appellant's application for funds to call expert evidence. (d) That the sentence
death was contrary to Article 7.1
the Constitution, which provides that every person has the right to life and corporal integrity and that the imposition and execution
such sentence constituted a harsh, inhuman and degrading treatment. In this respect counsel argued that Article 7.2
the Constitution, which authorises a Court
Law to impose the sentence
death in cases
premeditated murder; is unconstitutional because it contravenes Articles 7.1 and 8
the Constitution and both the International Convention on Human Rights and the European Convention on Human Rights. (I) On the question whether the murder was committed with premeditation: Held, (Triantafyllides, P. and A. Loizou, J. dissenting) that having regard to the nature and quality
the evidence it is not possible to say that the trial Court's verdict on the issue
premeditation was either safe or satisfactory. (A) Per Hadjianastassiou, J., L. Loizou and Malachtos, JJ. concurring: (a) That as the conclusion
the trial Court that the appellant kept watch on the movements
the victim prior to April 5, 1973, cannot be sustained; simply because even the companions
the victim admitted when meeting the appellant on the road, that it was a mere, suspicion that he was following them and nothing more; (b) that as it is difficult to know on what evidence the trial Court drew the inference that the appellant kept a watch on the movements
the victim in order to ascertain the hour at which he used to leave work, because the only evidence was that he was seen passing outside the petrol station 10 minutes before closing time, but no evidence was forthcoming that he was seen watching the movements
the persons at the petrol station to realize the exact closing time; (c) that as there are questions which have not been answered regarding the above third conclusion
the trial Court and it is unsafe for any one to draw the inference that the emerging
the appellant at Thessaloniki Avenue was described by the Court was in those, circumstances planned with a view to killing the victim; (d) that as the question, whether the victim was carrying a pistol on the fatal night remained unanswered and the finding
a leather pistol ease in his car and the rounds
ammunition in his possession is equally consistent with both carrying and the non-carrying
a pistol and there being grave doubts they go to the benefit
the appellant; (e)(After dealing, with the law
premeditation vide pp. 420-425 post) that as the evidence
key prosecution witnesses (Andreou and Georghiades) is unsafe and unsatisfactory in view
the discrepancy between what they stated before the Coroner and the Assize Court; (f) that as the evidence
the ballistics' expert regarding his examination,
the jacket
the victim, though uncontradicted, is not safe, not only because
the long passage
time, but also because his observations being the result
an examination with the naked eye do not give that certainty required in a capital case, in the absence
being also, tested in a laboratory (statement
Lord President Cooper in, Davie v Edinburgh Magistrates
experts "is to furnish the Judge. or jury with the, necessary scientific criteria for testing the accuracy
their conclusions, so as to Venable the Judge or jury to form their own independent judgment by the application
these criteria to the facts proved in evidence" adopted and followed); (g) that as the trial Court, though correctly applying the scientific criteria for testing the accuracy
their conclusion,they went wrong and reached unsafe conclusions and this is the reason why a retrial has not been ordered in this case (
judgment
Hadjianastassiou J. in Anastassiades v. Republic, reported in this Part at. p. 97 ante); (h) that as there are grave doubts that one could, or might reach with certainty the conclusion reached by the trial Court viz, that the range at Which the appellant had fired at the victim and the circumstances tinder which he did so are indicative
his determination to kill the deceased having regard to the evidence as a whole on the issue
premeditation; (i) that as the question
premeditation is a question
fact, not
Law, and as great doubts are entertained as to what has actually happened when the victim was stopped by the appellant on the road, which made him kill the victim in such a brutal manner, and one may be, driven to think in all those circumstances, viz. that because the killer did not fire at the victim immediately he stopped him on the road, that it was a killing committed more after the refusal
the victim to alight after a continuous shouting and banging on the window and/or apart from any other conceivable reason, his dashing away to leave the scene, rather than pursuant to a cool preconceived plan (Dieta in Rex v Cooper [1969] 1 All E R 32 at pp 33-34, Stafford v. D.P.P. [1973] 3 All E.R. 162 (H.L) at pp. 764, 768, 769, regarding the principle
lurking doubt that the conviction may be unsafe or unsatisfactory adopted and followed; see also Koutras v. Republic
the trial Court should be set aside on the ground that under the circumstances
the case it is unsafe or unsatisfactory, (having a reason able doubt or a "lurking doubt"), and that, accordingly, notwithstanding the fact that the trial Judges had every advantage, the appeal will be allowed and both the conviction and the death sentence will be quashed. (j) That in the circumstance's the appellant should be convicted
homicide only under the provisions
section 205
the Criminal Code, Cap. 154 and sentenced to life imprisonment. (B) Per L. Loizou, J.
the main, prosecution witnesses upon which the Court relied in finding premeditation leaves much to be desired and that therefore, the findings and inferences based there on are unsafe:
the crime in Thessaloniki Street and that the latter finding especially is quite inconsistent with the behaviour
the deceased who whilst travelling with his companion in a convoy,
three cars for safety reasons, as it was stated, saw fit all
a sudden to accelerate and overtake the car
the convoy which was in front
him at the precise moment when the car
the appellant was seen travelling ahead
them and having done so to follow the appellant into Thessaloniki street.
this nature in a case such as the present did not raise, at least a, suspicion in the mind
the Court that the evidence
the witness might not have been as reliable or accurate as they found it to be.
the ballistics expert-vide pp. 395-396 post) that one would have thought that the witness would have been in a much better position to give an accurate and correct answer to the question whether the wounds on the victim were caused by contact shots had he been given the opportunity to carry out a scientific examination in his laboratory at an early stage rather than having to rely on what he could perceive with a naked eye and from material hardly sufficient for the purpose and that although the witness concluded that in his opinion the holes on the jacket
the deceased had been caused by contact shots one is, in the circumstances, left wondering about the correctness
his conclusion.
the evidence in this case on the issue
premeditation is a matter
grave concern; that having regard to its nature and quality it is not possible to say that the verdict
the Assize Court on this issue was either safe or satisfactory; and that the least that can be said is that there is room for grave doubt whether the killing was premeditated and the appellant is by law entitled to the benefit
such doubt. (C) Per Malachtos, J.
the movements
the victim by theappellant and, in particular, in finding that the car
the appellant emerged in front
the car
the victim shortly before the commission
the
fence, because the evidence on this point, according to the prosecution witnesses, is that the victim overtook the car which was preceding and which was driven by his employee P.W. 5, NeofytosAndreou, when obviously he noticed the car
the appellant and followed it when it turned left and, entered into, Thessaloniki Avenue.
Georghiades, the main point
which is that after the first shots he saw the appellant next to the driver's door
the car
the victim at its resultant position firing two or three times in the direction
the driver's seat, ought not to be accepted by the Assize Court or .at least should have, created doubts in. their minds as to whether this witness was telling the truth on this point, since at the inquest before the Coroner, did not testify anything
the kind, and the explanation given by this witness as to why he did not mention the above fact at the inquest is a very poor one; and that though a witness in giving evidence before a Court
law may not relate facts
minor importance which he witnessed in a given incident surely he cannot be excused for omitting to state such facts which constitute the main and the most important .part
his evidence.
the Constitution, which authorises a Court to impose the sentence
death in cases
premeditated murder, is unconstitutional because it contravenes Article 7.1
the Constitution: Held, that Article, 7.2
the Constitution is not unconstitutional. (A) Per Hadjianastassiou, J., L. Loizou and Malachtos, JJ. concurring: That one cannot attack the constitutionality
one paragraph
the Constitution as contravening another, once the framers
the Constitution thought fit to include in the Constitution that a law may provide for such penalty ,
depriving aperson
his life only in cases
premeditated murder and-that accordingly, the contention
counsel will be dismissed. (B) Per Triantafyllides, P. That it cannot be held that Article 7.2 is not properly in force because it, allegedly, conflicts, with Article 7.1 and 8
the Constitution; that what is expressly provided for in the Constitution can never be treated, as being inoperative on the ground that its application is excluded by some other provision
the Constitution; that the death sentence which was imposed in the present instance in full conformity with the provisions
.2
the Constitution on the basis
the findings
the trial Court, could not be treated as being vitiated because
any provision to the contrary in any international convention or declaration and that this Court when sitting on appeal in a case such as the present one is exercising territorial jurisdiction-within the Republic
Cyprus and for this purpose, it has to apply the Constitution as the supreme law. (c) Per A. Loizou, J. That the wording
.2
the Constitution is so clear and explicit and there is no contradiction in it with paragraph
paragraph 2; and that there is no contradiction with the provisions
which prohibits torture or inhuman or degrading punishment or treatment and which has nothing to do with the death sentence permitted in certain cases to be imposed under paragraph 2
the Constitution. (III) On the question whether the trial Court dealt correctly with the appellant's application for funds to call expert evidence: Held, (Triantafyllides, P. dissenting) A. Per Hadjianastassiou, J., L. Loizou and Malachtos, JJ. concurring: That the trial Court reached a correct view
.5
the Constitution that in the absence
any legislation it could not authorise at that stage payment
funds for legal assistance to the appellant. (B) Per A. Loizou, J. That under sections 166 and 167
the Criminal Procedure Law, Cap.155 and rules 20-23
the Criminal Procedure Rules, funds are under certain conditions which do not affect thecasein hand, available to defray the costs
witnesses for the defence; and that, the proper course that should have been followed in this case was not to inquire with the Court, in such general terms about the availability
funds, but to take advantage
the procedural steps open to an accused person and make the best
it for his benefit (pp. 488-452 post). Cases referred to: In re Ktimatias (reported in this Part at p. 296 ante); The Republic v. Demetriades and Another
the European Convention on Human Rights, 1961 Vol. 4, pp. 548, 550; Decisions
the European Court
Human Rights; Neumeister case, delivered on 27.6.1968, para. 22 at p. 43; Delcourt case, delivered on 17.1.1970, para. 28 at p. 15; Decision
the European Commission
human Rights: X. v. The FederalRepublic
Germany (Application No. 1169/61) Yearbook
1963, Vol. 6, p. 520 at p., 574; X. v. The Federal Republic
Germany (Application No. 3197/67) Collections
the Decisions
the Commission, Part 26, p.77atp.79; X. v. The United Kingdom (Application No. 5871/72) Decisions and Reports
the Commission, Part 1, p. 54; X. v. Sweden (Application No. 434/58) Yearbook
1958-1959, Vol. 2 p. 354 at p. 370;
ner and Hopfinger v. Austria (Applications Nos. 524/59 and 617/59) Yearbook
1963,Vol. 6 p. 676 at p. 696; Austria v. Italy (Application No. 788/60) Yearbook
1963, Vol. 6 p. 772.at p. 794; X. v. Belgium (Application No. 1134/61) Yearbook
1961, Vol.4 p. 378 at p. 382; Huber v. Austria (Application No. 5523/72) Yearbook
1974, Vol. 17 p. 314 at p. 328; X. and The German Association
Z v. The FederalRepublic
Germany (Application No. 1167/61.) Yearbook
1963 Vol. 6 p. 204 at p. 216; X. v. The FederalRepublic
Germany (Application No. 852/60) Yearbook
1961 Vol. 4 p. 346 at p. 354; X. and Y. v. The Federal Republic
Germany (Application No. 1013/61) Yearbook
1962, Vol. 5 p.158 at p. 164; X. v. Austria (Application No. 1418/62 Yearbook
1963 Vol. 6 p. 222 at p. 250; R. v. Wallwork, 42 Cr; App. R. 153 at p. 159; R. v. Merry, 54 Cr. App. R. 274 at p. 279; Pierides v. The Republic
Larnaca (Criminal Case No 10213/76) on one count
the
fence
premeditated murder, contrary to sections 203, 204, 20 and 21
the Criminal Code, Cap. 154 (as amended by the Criminal Code (Amendment) Law, 1962. (Law 3/62)) and was sentenced to death by Pikis, Ag. P.D.C., Papadopoulos, S.D.J. and Constantinides D.J. M. Christophides with G. Georghiou, for the appellant. S. Nicolaides, Senior Counsel
the Republic, with R. Gavrielides, Counsel
the Republic, for the respondent. Cur.adv. vult. The following judgments were read: TRIANTAFYLLIDES, P., The appellant has appealed against his conviction, on March, 3 1977; by an Assize Court in Larnaca,
the
fence
premeditated murder under sections 203, 204, 20 and 21
the Criminal Code, Cap. 154, as amended by the Criminal Code (Amendment) Law, 1962 (Law 3/62) As a result
such conviction he was sentenced to death; and, though such sentence was the only one which could have been passed upon the appellant under section 203
Cap 154, the appellant has, also, appealed in respect
the death entence on the ground that it is unconstitutional and, also, contrary to the Universal Declaration
Human Rights
the United Nations,
December 10, 1948, and to the European Convention for the Protection
Human Rights and Fundamental Freedoms,
November 4, 1950 It has been the case for the prosecution that on the night
April 5, 1973, in Larnaca, the appellant, acting in concert with two conpanions
his, namely Kyriacos Kakis and KlavdhiosNeocleous, killed GeorghiosFotiou, late
Larnaca, by firing repeatedly with fire-arms at their victim, in perpetration
a premeditated plan to murder him. The trial Court, at the end
an elaborately reasoned judgment, reached the following conclusions, on the basis
which it convicted the appellant:- "1. The accused kept a Watch on the movements
the deceased prior to 5th April 1973. This watch enabledthe accused to acquaint himself about the movements
the deceased. 2. On 5th April 1973, the accused kept a watch on the movements
the deceased, mainly in order to ascertain the hour at which he left work 3. The accused and his companions emerged in. front
the convoy
cars, including the car
the deceased, with the sure knowledge that the deceased was on his way home, expecting him to follow, as it was the deceased's habit, a route via. Thessaloniki avenue. 4. The accused, acting in anticipation
the movements
the deceased, turned into Thessaloniki avenue in order to waylay him. The choice
the entrance
Thessaloniki avenue was such as to enable the accused to cause the deceased to bring his car to a standstill without much difficulty, considering that the speed
the deceased could reasonably be expected t be low at the time as he was at the entrance
the street. 5. Having entered Thessaloniki avenue, the accused emerged immediately into the middle
the street with a pistol in his hand in order to compel the deceased to stop. 6. The accused approached the deceased and demanded that he should alight. In the meantime his companions alighted, dangerously armed, taking positions round the car
the deceased making his escape impossible. At the same time they immobilized the companion
the deceased, NeofytosAndreou. The accused kept banging on the window pane
the deceased with his pistol and when the deceased persisted in his refusal to alight, locking his windows at the same time, the accused fired twice at the deceased from close range, giving thereby a clear indication
what he intended to do with the deceased. When the deceased made a vain effort to escape, the companion
the accused, Kakis, and probably Clavdhios as well, fired at the deceased riddling his body with bullet wounds. 7. When the car
the deceased ended on the left side
the road in the circumstances we have described, the accused fired two more shots at the deceased, indicatingthereby that he wanted to eliminate every possibility
the deceased surviving the injuries already inflicted upon him. The range from which the accused fired at the deceased and the circumstances under which he did so are indicative
his determination to kill the deceased. The wounds caused by the two contact shots referred to in evidence were inflicted upon the deceased by the accused." Earlier on in its judgment the trial Court stated the following in relation to the evidence adduced:- "The evidence relied upon to substantiate the charge may be divided into the following three categories:- 1. Evidence, tending to establish motive on the part
the accused and his alleged accomplices, coupled with evidence allegedly establishing a shadowing
the movements
the deceased on the part
the accused for a period
time. 2. Evidence
alleged eye-witnesses. 3. Scientific evidence coming from- (
the ballistics' expert must be judged in juxtaposition to the finding
pieces
real evidence such as expended cartridge cases, projectiles and broken glass." One
the eye-witnesses in this case, whose evidence is
vital significance in relation to conclusion No. 7, above,
the trial Court, was KritonGeorghiades, who testified that he saw the appellant standing in the street, outside his house and near the car
the deceased, and firing the two shots referred to in the said conclusion No. 7
the trial Court. In relation to his evidence the trial Court stated in its judgment the following:- "In evaluating the evidence
KritonGeorghiades we havenot overlooked the serious discrepancy between his testimony before the Coroner and the evidence he gave before the Assize Court, a discrepancy
a kind that should make the Court very careful before deciding to act on his evidence. We have indeed approached his evidence with the utmost care. However, having seen and heard him give evidence before us we believe he told the Assize Court the truth about what he witnessed that night. His evidence is also supported in material respects by the findings
the police at the scene, as explained by witnesses Christofides and Kyamides. And their evidence does suggest, contrary to what the accused alleged from the dock, that the deceased had been fired at from a very close range whereas the proximity
the expended cartridge cases 9 m.m. caliber does shed light on the position
the assailant
the deceased corresponding with that give by the eye-witnesses at the scene." The two prosecution witnesses referred to in the above passage are Acting Police Inspector Andreas Christofides (P.W. 39), a ballistics' expert, and Dr. Andreas Kyamides (P.W.38), a Government pathologist, who carried out a post mortem examination on the body
the victim. In connection with the evidence
Inspector Christofides and Dr. Kyamides, as well as with the evidence
defence witness Dr. DemetriosFessas (D.W.2), the trial Court said the following in its judgment:- "Perhaps the most significant part
the evidence
this witness is his opinion that the shots that caused two
the holes on the jacket
the deceased (exhibit 1A) were caused (a) the hole at the back by a contact shot, that is a shot fired from a maximum range
two inches from the jacket, and (b) the hole by the right shoulder
the jacket was again caused by a contact shot fired from a slightly longer range that is from a maximum distance
six inches from the hole. The witness explained his reasons for coming to this conclusion and testified that the insignia and characteristics
these holes make further examination unnecessary, considering that the holes had been caused by what he described as contact shots. The jacket had been examined by the witness for the first time during the bearing
the case before the Assize Court and subsequently while giving evidence us. These two holes correspondwith the position
the bullet wounds found by the doctor at the back
the deceased and on the surface
the right shoulder blade
the deceased towards the back pictured in photographs 27 and 26 respectively. Much time was devoted in the cross-examination
Dr. Kyamides as to the precise position
the wound on the shoulder blade. Mr. Kyamides disclaimed any special knowledge
reading photographs and insisted, despite the appearance one is apt to get by viewing photograph. 26, that the wound was where he described, a description that we must, say fits with the position
the hole on the jacket
the deceased. In the opinion
the photographer this wound was an inch below the shoulder, a view shared by Dr. Fessas, a. witness for the defence, who testified that this injury is on the joint between the upper and middle third
the ulna
the right arm. Mr. Fessas, a general practitioner
long standing, testified, on a consideration
the wounds as they appear on photographs 26 and 27, that the wound in photograph 26 Was, to whatever extent he could make out from the photograph, a wound on the right arm and rather surprisingly, we must confess, he went on to express an opinion as to whether this wound as well as that suffered at the back had been caused from a contact shot. Unlike Mr. Kyamides, he did not have the benefit
examining the wounds on the dead body and it was, if we may say without disrespect, rather presumptuous on his part to venture an opinion about the range from which the shots that caused the two wounds in question had been fired. He disclaimed, in his own words, any special knowledge on photography or ballistics. This, however, did not deter him from expressing an opinion. His opinion, to whatever extent it may shed light on the issues under consideration, is that the wound pictured in photograph 26 had not been caused by a contact shot whereas this was more likely the case with reference to the wound pictured in photograph 27. Later in cross-examination he rather inclined to modify his view as to the position
the wound pictured in photo graph 26 and indicated its position at a point fitting the corresponding hole on the jacket thus coming round in a way to the view
Dr. Kyamides, who evidently was in a unique position to enlighten us about the position
this bullet wound. It is instructive to note the evidence
MrKyamidesas to the angle at which the bullets that caused the wounds pictured in photograph 26 and 27 the back
the shoulder
the deceased, hit the deceased. The bullets had struck the deceased virtually vertically. The evidence
Dr. Kyamides on the point, coupled with that
Mr. Christofides as to the range from which these shots had been fired, if accepted, throws Considerable light to the position
the assailant
the deceased at the time and tends to corroborate in a very direct way the evidence
the two eye-witnesses that the accused shot at the deceased from close range. Further, this evidence, accepted, tends to exclude the possibility that these shots had been fired by any one
the companions
the accused and gives an indication
the person who fired the pistol that discharged the four expended cartridge cases that were found at the scene
the incident. On the other hand, the evidence
expert witnesses, parti the testimony
witness. Christofides and Dr. Kyamides, have been scrutinized in detail lest their findings are erroneous in any respect or their opinion, ill-founded or unjustified.
course the findings
experts, when accepted as correct, carry the weight
science stripped
human emotion and margins
human fallibility. We were extremely well impressed with witness Christofides, the ballistics expert. We formed the view that he is well trained in the field
ballistics, with long practical experience behind him. He gave us the impression
being both accurate and succinct, both in his findings and in the opinion he expressed. He struck, us as a witness who would be unwilling to express an opinion unless certain about it and then if uncertain, to any extent he would
fer his opinion subject to the necessary qualifications We accept him as a witness
truth and as a reliable witness and feel confident that we can .safely act on his evidence. We formed the same impression about Dr. Kyamides and accept without hesitation his findings and opinion we did not form the same view about the evidence
DrFessas, evidence which we consider as totally unreliable." Moreover, it is to be borne in mind that the trial Court rejected "without hesitation" an unsworn statement made by the appellant from the dock during the trial, because it was,inter alia, in conflict with the findings
Inspector Christofides and Dr. Kyamides. During the trial, and before Inspector Christofides and DrKyamides had given evidence, counsel for the appellant, who had been assigned by the Assize Court, under secti6n 64
the Criminal Procedure Law, Cap. 155, to defend the appellant at the trial, raised, on February 17, 1977, the question
how the costs
expert witnesses in relation to fire-arms, who would be consulted and probably called by the defence, would be paid the relevant part
the record
the trial reads as follows:- "Time: 5:30 p.m. Christofides: Your Honours, the time is about 5:30 p.m. and I .understand that the Court will break for to-morrow. Before the Court rises there is one thing I must bring, to the notice
the Court and ask directions. In accordance with the provisions
.5
the Constitution the accused must be afforded, inter alia, sufficient 'diefkolinsis', that is facilities for the preparation
his defence. In this case expert evidence on firearms will be led by the police and the defence will consult and probably adduce expert evidence on the question
fire-arms. The, question arises
who shall pay the costs
these experts. It is well known that we were assigned by the Court to defend the accused, and surely the directions
the Court on the matter would be most helpful. Nicolaides: There is no obstacle "on the part
the prosecution for any facilities to be afforded to the defence. But unless there is the machinery we cannot improvise the machinery for such facilities. No law has been introduced implementing that paragraph
the Constitution. DECISION: Learned counsel for the defence raised an interesting and novel point. He sought the directions
the Court on the possibility
the costs
expert witnesses being paid by the State in the event where this Court considered this, course necessary for the proper preparation and presentation
the case for the defence before the Court. Mr. Christofides made it clear that there is no provision anywhere in the criminal procedure or regulations made thereunder entitling the Court to authorize, the payment
such expenses. He did point out, however, that in Article. 12.5 it is laid down that the accused should be afforded, adequatefacilities for the preparation
his defence and submitted that the amenity to consult and call expert witnesses is such an essential facility that this facility should be provided by the State where the accused has no funds, especially in a case where defence counsel appear on a Court assignment. Learned counsel for the prosecution, in his reply indicated that there is willingness on the part
the State to afford every facility for which there is warrant in the law to the accused for the preparation
his defence but submitted that there is nowhere provision that might entitle the Court to give such directions. In our judgment, the relevant provisions
the Constitution safeguarding fundamental defence rights do not confer power to authorize the payment
the expense that may be incurred for the consultation and calling
expert witnesses, out
public funds. "This Constitutional provision is designed to ensure substantial equality between the prosecution and the defence with regard to the right to choose their witnesses and produce them before the Court without hindrance. Had the Constitutional legislators intended to confer such a right on the accused they would include this right among the minimum fundamental rights, Such as the right to have an interpreter
course had the State implemented those provisions
the Constitution, making mandatory the setting up
a system,
legal aid, surely a law might provide, as an aspect
legal aid the payment
the expenses
defence witnesses and the circumstances under which such expenses might be paid. We do not overlook that a citizen may conceivably find himself at a disadvantage on account
inequality
means but in the absence
an organic law we have no power to substitute for the House
Representatives and legislate in effect for some aspects
legal aid
course the State must, at the first available opportunity, provide, as it has been repeatedly stressed by the Supreme Court, for a comprehensive system
legal aid though, having in mind the multiple problems the State has had to face so far one cannot be too critical
failure to provide a comprehensive scheme
legal aid. Therefore we have no power to give directions in relation to a matter beyond our competence
course, if at the end
the proceedings thedefence applies to the appropriate. Governmental Department for the payment
these costs,-and we must say that there is at present nothing in the law providing for such a procedure-and if the views
the Court are asked on the matter, we shall give our views depending on the necessity
incurring the expenditure and its reasonableness. The case is adjourned for further hearing to-morrow at 9:30 a.m. Accused to remain in custody." As a result
the above-quoted decision
the trial Court no expert witness in relation to fire-arms was consulted, or called, by the defence at the trial A medical expert witness, DrFessas, was, however, called by the defence and his costs were, eventually, paid, after the trial, out
public funds. As it appears, however, from the comments
the trial Court on the evidence
DrFessas, which we have already quoted, his evidence was not treated as expert evidence in relation to ballistics matters and, therefore, the gap in the case
the defence, due to the absence
such expert evidence, was not remedied by the fact that DrFessas gave evidence at the trial as a defence witness. Counsel for the appellant have complained that, because
the aforesaid decision
the trial Court on February 17, 1977, the appellant was prejudiced in the preparation and presentation
his defence at the trial, in a manner contrary to the relevant provisions
our constitution Paragraphs 2 and 3
the Constitution provide as follows:-. "2. In the determination
his civil rights and obligations or
any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial, and competent Court established by law. Judgment shall be reasoned and pronounced in public session, but the press and the public may be excluded from all or any part
the trial upon a decision
the Court where it is in the interest
the security
the Republic or the constitutional order or the public order or the public safety or the public morals or where the interests
juveniles or the protection
the private life
the parties so require or, in special circumstances where, in the opinion
the Court, publicity would prejudice the interests
justice. 3. Every person has the right- (a) to be informed
the reasons why he is required to appear before the Court. (
his own choice and to have free legal assistance where the interests
justice so require and as provided by law; (e) to have assistance
an interpreter if he cannot understand or speak the language used in Court. The above provisions relate to proceedings before the Courts generally. In relation, however, to a trial for an
fence paragraph 5
the Constitution provides, particularly, as follows:- "5. Every person charged with an
fence has the following minimum rights:- (a) to be informed promptly and in a language which he understand and in detail
the nature and grounds
the charge preferred against him; (b) to have adequate time and facilities for the preparation
his defence; (c) to defend himself in person or though a lawyer
his own choosing or, if he has no sufficient means to pay for legal assistance, to be given free legal assistance when the interests
justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination
witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance
an interpreter if he cannot understand or speak the language used in Court." All the above provisions
the Constitution are formulated in such a manner so as to ensure for, inter alia, any person charged with a criminal
fence a "fair" trial; and as I have had occasion to observe in Re Ktimatias, (reported in this Part at p. 296 ante, at pp. 306-307) a trial may still not conform to the general standard
"fair trial, in the sense
.2, even if the specific minimum rights
an accused person have been respected, because the enumeration
such minimum rights is not exhaustive. It is to be noted, furthermore, in this connection, that in The Republic v. NicosDemetriades and another,
our Constitution safeguards "the fundamental right
an accused person to have a fair trial in every respect." Article 30.2
our Constitution corresponds, very closely, to Article 6
the aforementioned European Convention on Human Rights, which reads as follows:- "1. In the determination
his civil rights and obligations or
any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part
the trial in the interests
morals, public order or national security in a democratic society, where the interests
juveniles or the protection
the private life
the parties so require, or to the extent strictly necessary in the opinion
the Court in special circumstances where publicity would prejudice the interests
justice." Likewise, Article 12.5
our Constitution corresponds, equally closely, to Article 6
the said Convention, which reads as follows:- "3. Everyone charged with a criminal
fence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail,
the nature and cause
the accusation against him; (b) to have adequate time and facilities for the preparation
his defence; (c) to defend himself in person or through legal assistance
his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests
justice so require; (d) to examine or have examined witnesses against him and to obtain he attendance and examination
witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance
an interpreter, if he cannot understand or speak the language used in Court." It is well settled that the European Convention on Human Rights; which has been ratified by the European Convention on Human Rights (Ratification) Law, 1962 (Law. 39/62), is applicable, in the Republic
Cyprus, by virtue
.3
our Constitution and, therefore, it is
"superior force to any municipal law" (see, in this respect, inter alia, Christou v Christou, 1964 C.L.R. 336, 346,"Kanna v. The Police,
application
the aforesaid provisions
the European Convention on Human Rights (by the, European Commission
Human Rights and the European Court
Human Rights) can provide most Useful guidance as regards the interpretation and application
the corresponding provisions
our own Constitution which have, already, been quoted in this judgment. In Nielsen v. Denmark (Application No. 343/57) the Commission stated, inter alia, the following (see the Yearbook
the European Convention on Human Rights, 1961, vol 4, pp 548, 550):- "Article 6
the Convention does not define the notion
fair trial in a criminal case. Paragraph 3
, the Article enumerates certain specific rights which constitute essential elements
that general notion, and paragraph 2 may be considered to add another element. The words minimum rights, however clearly indicate that the six rights specifically enumerated in paragraph 3 are not exhaustive, and that a trial may not conform to the general standard
a fair trial, even if the minimum rights guaranteed by paragraph 3-and also the right set forth in paragraph 2-have been respected. The relationship between the general provision
paragraph 1 and the specific provisions
paragraph 3, seem to be as follows: In a case where no violation
paragraph 3 is found to have taken place, the question whether the trial conforms to the standard laid down by paragraph
the trial as a whole, and not on the basis
an isolated consideration
one particular aspect
the trial or one particular incident. Admittedly, one particular incident or one particular aspect even if one falling within the provisions
paragraphs 2 or 3, may have been so decisive for the general evaluation
the trial as a whole. Nevertheless, even in this contingency, it is on the basis
an evaluation
the trial in its entirety that the answer be given to the question whether or not there has been a fair trial." It is well settled that the principle
equality
arms is an inherent element
a fair trial within the meaning
the Convention (See, in this respect, Fawcett on The application
the European Convention
Human Rights, 1969, p. 137 et seq., Castberg on The European Convention
Human Rights, 1974, p. 123 et seq. and Jacobs on The European Convention on Human Rights, 1975, p. 99 et seq., the judgments
the Court in the case
Neumeister, delivered on June 27, 1968, para. 22 at p. 43, and in the case
Delcourt, delivered on January 17, 1970, para. 28 at p. 15, and decision
the Commission in the cases
X v. The Federal Republic
Germany, application No. 1169/61, Yearbook, 1963, vol. 6, pp. 520,574, X v. The Federal Republic
Germany, application No. 3139/67, Collection
the Decisions
the Commission, Part 26, pp. 77, 79 and X v. The United Kingdom, application No. 5871/72, Decision and Reports
f the Commission Part 1 p. 54). Concerning the principle
equality
arms the following are stated by Fawcett, supra (at p. 137):- "The principle
the equality
arms (legalite des armes; Waffengleichheit) is an expression
the rule audialterampartem, and implies that each party to the proceedings before a tribunal must be given a full opportunity to presenthis case, both on facts and in law, and to comment on the case presented by his opponent. This Opportunity must be equal between the parties and limited only by the duty
the tribunal to prevent in any form an undue prolongation or delay
the proceedings." In this respect the Commission stated the following in its decision in the case
X v. Sweden application No. 434/58 (Yearbook, 1958-1959, vol. 2, pp. 354, 370, 372):- "Whereas, also, the right to a fair hearing guaranteed by Article. 6, paragraph 1,
the Convention appears to contemplate that everyone who is a party to civil proceedings shall have a reasonable opportunity
presenting his case to the Court under conditions which do not place him under a substantial disadvantage vis-a-vis his opponent;" The same principle
equality
arms applies a fortiori to criminal proceedings; in its decision in the cases
ner and Hopfinger v. Austria, applications Nos. 524/59 and 617/59, Yearbook, 1963, vol. 6 p. 676, 69.6, the Commission stated the following:- "In the present cases the problem is whether the notion
a fair trial embodies any right relating to the defence beyond and above the minimum rights laid down in paragraph
the opinion that what is generally called the equality
arms, that is the procedural equality
the accused with the public prosecutor, is an inherent element
a fair trial. Whether such equality has its legal basis in paragraph
subparagraphs (b) ('to have adequate time and facilities for the preparation
his defence') and (c) ('to defend himself in person or through legal assistance'). The Commission need not express a definite opinion on this point, since it is beyond doubt that in any case the wider and general provision for a fair trial, contained in paragraph
, embodies the notion
'equality
arms'." In. the case
Austria v. Italy, application No. 788/60, the Commission observed that Articles 6
the Convention, convey to some extent, in their special field, an idea
equality very similar, to the principle
non-discrimination laiddown in Article 14
the Convention (see Yearbook, 1963, vol. 6, p. 794) An aspect
the principle
equality
arms which is
particular significance is that which relates to the time and facilities for the preparation
the defence
an accused person and, especially, to his right to examine witnesses against, him and to obtain the attendance and examination
witnesses on his behalf under the same conditions as witnesses against him. In this connection, the Commission, in its decision in the case
X. v. Belgium, application No. 1134/61 (Yearbook, 1961, volume 4,. pp. 378, 382) stated:- "Whereas in particular, with regard to the alleged violation
paragraph
a Criminal
fence has the right to examine or have examined witnesses against him and to obtain the attendance and examination
witnesses on his behalf under the same conditions as witnesses against him; whereas the Commission has already pointed out, in pronouncing on the admissibility
Applications No. 617/59 (Hopfinger v. Austria) and No. 788/60 (Austria v. Italy), that the text in question is intended to place the indicted, prosecuted or accused person on an equal footing with the prosecution as regards the hearing
witnesses, but not to give him a right to call witnesses without restriction;" Likewise, in the case
Austria v. Italy, supra (Yearbook, 1963, vol. 6, p. 772), the Commission stated the following in its decision:- "Article 6
the Convention, in guaranteeing to everyone charged with a criminal
fence the right to obtain the attendance and examination
Witnesses an his behalf under the same conditions as witnesses against him, aims at ensuring for the defence complete equality
treatment in this respect with .the prosecution and the civil plaintiff on the other hand, it does not imply the right to have witnesses called without restriction. Thus, this provision does not mean that municipal law cannot lay down conditions for the admission and examination
witnesses, provided that such conditions are identical for witnesses on both sides. Similarly, the competent judicial authorities in Contraction States are free, subject to respect for theterms
the Convention and in particular the principle
equality established by Article 6
a witness for the defence is likely to assist in ascertaining the truth, and if not, to refuse to call that witness." The same view, as above, is reiterated in more recent decisions
the Commission, such as that in the case
Huber v. Austria, application No. 5523/72 (Yearbook, 1974, vol. 17, pp. 314, 328). For the purposes
the relevant provisions
the Convention the term "witness" includes, also, an "expert witness" (see, inter alia, Fawcett, supra, at p. 174, and the decision
the Commission in application No. 1167/61, X and the German Association
Z v. The Federal Republic
Germany, yearbook, 1963, vol. 6, pp. 204, 216). It has been held by the Commission that it is conceivable that, in certain circumstances, the refusal
a Court
a Court to allow a witness to testify may contravene directly the requirement
fair trial in Article 6
the Convention, and not only the specific provision in Article 6
the Convention (See, in this respect, the decision
the Commission in X v. The Federal Republic
Germany, application No. 852/60, Yearbook, 1961, vol. 4, pp. 346, 354, and our own case
Christou, supra, at p. 346, in which the above decision
the Commission has been referred to). The establishment
a violation
the provisions
the Convention regarding a "fair hearing" cannot be determined in abstracto, but it is a matter which must be considered in the light
the special circumstances
each case (see the decision
the Commission in the case
X and Y v. The Federal Republic
Germany, application No. 1013/61, Yearbook, 1962, vol. 5, pp. 158, 1.64); and, for this purpose, the trial
an accused person must be considered as a whole (see the decision
the Commission in X v. Austria, in application No. 1418/62, Yearbook, 1963, vol. 6, pp. 222, 250). Also, in its judgment in the Delcourt case, supra, the European Court
Human Rights has observed the following regarding the interpretation
25 p. 15):- "In a democratic society within the meaning
the Convention, the right to a fair administration
justice holds sucha prominent place that a restrictive interpretation
that provision". I am
the opinion that the principle
equality
arms, as expounded above, is an inherent part
all the provisions
.2 and Article 12.5
our own Constitution which correspond, respectively, to paragraphs
the European Convention on Human Rights. Moreover this principle is directly safeguarded-in a manner not to be found. in the Convention-by means
.1
our Constitution, which provides that "All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby"; it is to be noted, in this respect, that Article 28.2
our Constitution corresponds to Article 14
the Convention but, in. the latter Article, there does not exist any provision such as paragraph 1
our Article 28. Looking, now, as a whole at the trial
the appellant in the present appeal, and taking duly into account all relevant considerations, I feel bound to come to the conclusion that the deprivation
the appellant
the possibility
consulting a ballistics expert and
calling him as a witness for the defence Operated in such a manner as to place him at a grave disadvantage vis-a-vis the prosecution, at his trial, in a manner which contravened the principle
equality
arms, as safeguarded both by our Constitution and by the said Convention. In this respect 1 think that it must be stressed that the evidence
the ballistics expert called by the prosecution, Inspector Christofides (P.W. 39), turned out to be
decisive importance regarding the findings made by the trial Court about the part played by the appellant in bringing about the death
the victim and, also, regarding the existence, on his part,
premeditation to cause such death. As already pointed out in this judgment, the appellant was being defended by counsel assigned to him by the trial Court, under section 64
Cap 155 (as well as under Article 12 5(c)
the Constitution), and it has been common ground, all along, that the appellant had no means
his own enabling him to either engage counsel to defend him or to pay for the expenses
defence witnesses. I have, consequently, reached the conclusion that the onlyproper course open to me is to treat the conviction
the appellant as having been the culmination
a process which evolved in a manner inconsistent with essential constitutional safeguards
an .accused person, such as those set out in Articles 12.5, 30.2 and 28
the Constitution; therefore, his conviction has to be set aside on this ground. It is obvious from the decision given by the trial Judges on February 17, 1977, during the trial and when the issue
the need by the defence
the services
ballistics' expert was raised, that they appreciated fully that Article 12.5
the Constitution is designed to ensure substantial equality between the prosecution and the defence, but they, eventually, reached the conclusion-though they clearly expressed their anxious concern about the matter in question and have, undoubtedly, acted with the utmost good faith-that, in the absence
any statutory provision enabling them to order the payment
, the expenses
such an expert, they had no competence to give directions in this connection. Even if that were so, I would, still, have been inclined to hold that, in the particular circumstances
this case, the conviction
the appellant has to be set aside as having been brought about by a process inconsistent with the Constitution, because it is not his fault that the State has not made provision to meet a situation such as the one which has arisen in the present instance. I am, however,
the opinion that, even in the absence
a specific statutory provision directly authorizing the ,trial Court to order that the expenses
a ballistics' expert to be called as a witness by the defence should be paid out
public funds, there existed ways by means
Which there could have effectively been ensured the availability
such an expert; for example, once counsel appearing fort the prosecution had stated that "there is no obstacle, on the part
the prosecution, for any facilities to be afforded to the defence" he could have been asked to make available to the defence a ballistics expert out
those employed by the police in various parts
Cyprus or to take steps to make available at public expense such an expert even if he was not in Governmental employment but he was, for example, a retired ballistics' expert
the police. The trial Court could, also, have used its power
calling itself a witness in .a criminal trial under section 54
Cap. 155(and regarding the extent and the exercise
such power, see, also Phipson on Evidence, 12th ed., p. 676, para. 1619, and R. v. Wallwork, 42 Cr. App. R. 153, 159). In this way a second ballistics expert, in addition to Inspector Christofides (P.W.39), could have been heard and, thus, both the prosecution and the defence, as well as the trial Court, could have had the opportunity
testing, against the independent evidence
another expert, the correctness
the findings
Inspector Christofides, with the consequence that the disadvantage suffered by the appellant, as an accused person, by not being able to secure the attendance, as his own witness,
a ballistics expert, would have been minimized to such an extent that it could have been conceivably held, eventually, that there was no substantial contravention
the relevant constitutional provisions safeguarding the principle
equality
arms. Even another way in which a ballistics' expert could have been made available to the defence at public expense would have been for the trial Court to adjourn the further hearing
the case, on February 17, 1977, for a few days, so as to have an opportunity
exploring administratively, through the Supreme Court, the possibility
the Minister
Justice ensuring that the State would pay the expenses
a ballistics expert to be consulted and called as a witness by the defence.
course, it has to be stressed that the requirements
the defence, as regards the services
a ballistics expert, would have had to be met in a reasonable manner and without any extravagance beyond the limit if what was properly necessary in the circumstances. Having decided, as already stated in this judgment, that the conviction
the appellant should be set aside, the next issue which I have to consider is whether he should be discharged or whether there should be an order, under section 145
Cap.155, for his retrial. I have weighed carefully the advisability
ordering a new trial in a serious case, such as the present one, in which the appellant has been facing a charge
murder; I am not prepared to hold that murder cases should, invariably, be treated as being outside the ambit
the exercise
the powers under section 145
Cap. 155; and, as a matter
fact, in R. v. Merry, 54 Cr. App. R. 274, the Court
Appeal (Criminal Division) in England ordered a new trial in a case
murder, in the exercise
powers analogous to those
our Supreme Court underSection 145
the decision
the Court
Criminal Appeal in JORDAN [1956] 40 Cr. App. R. 153, where a conviction
murder was quashed after the Court had heard fresh medical evidence. But it is to be observed that JORDAN. (supra) was decided many years before this Court was for the first time vested with the power to order a new trial. We consider that in the interests
justice, this appellant should be retried. The Crown may then call such evidence as it desires to in relation to this fresh matter, or any other matter, just as the defence are equally entitled to present any material which they desire." In the light
all relevant considerations, and having in mind what has been, stated in, inter alia, Pierides v. The Republic
justice, for a new trial after the setting aside
a conviction on appeal, I have reached the conclusion that this is, indeed, a proper case in which an order for a new trial should be made. It is worth noting that the Australian case
Peacock v. The King, 13 C.L.R. 619, which has been refered to in the judgment in the Pierides, case, supra, is an instance in which a new trial was ordered, on appeal, in a capital case, namely in a case
murder. Having reached the conclusion that the appellant should be retried on the charge
premeditated murder it would not be right for me to pronounce finally on any other issue arising in this case. In relation, however, to the aspect
premeditation I feel that I have to observe that I am inclined to the view that when a group
heavily armed persons, such as the appellant and his two companions in the present instance, are roaming the streets
a town, in anticipation
a possible encounter with political opponents
theirs, and if in the course
such an encounter they use their arms with the result that there is caused deprivation
life, then, as a matter
general principle, there do exist elements in the light
which, depending on the special circumstances
each individual case, the conclusion might be reached that there existed premeditation to commit murder; one mightdescribe such premeditation as "conditional premeditation" (see, in this respect, inter alia, R. v. Chakoli, 8 C.L.R. 93, Pieris v. The Republic,
counsel for the appellant that the death sentence was invalidly passed upon the appellant iii the present case
course, since his conviction, has, in my opinion, to be set aside and a retrial should take place, the death sentence passed upon him would no longer be executed, but I wish, nevertheless, to state that I cannot accept the contention
counsel for the appellant that it is possible to pronounce that the death sentence was invalidly imposed in a case which comes within the ambit
.2
the Constitution. It cannot be held that the said Article 7.2 is not properly in force because it, allegedly, conflicts with Articles 7.1 and 8
the Constitution; what is expressly provided for in the Constitution can never be treated as being inoperative on the ground that its application is excluded by some other provision
the Constitution. Nor could the death sentence, which was imposed in the present instance in full conformity with the provisions
.2
the Constitution on the basis
the findings
the trial Court, be treated as being vitiated because
any provision to the contrary in any international Convention or Declaration, this Court, when sitting on appeal in a case such as the present one, is exercising territorial jurisdiction within the Republic
Cyprus and, for this purpose, it has to apply the Constitution as the supreme law. I would like, none the less, to reiterate that I still adhere to what I have said about the execution, as contradistinguished from the imposition,
a death sentence, in Vouniotisv The Republic,
fer, to the decision
the Privy Council in England in De Freitas v Benny, [1975] 3 WLR 388. For all the foregoing reasons, this appeal should, in my opinion, be allowed and a flew trial
the appellant, on the charge
premeditated murder, should take place L. LOIZOU, J.: I have had the opportunity
reading the judgment
Hadjianastassiou, J. and I agree with the conclusion reached by him and the reason therefor. I am clearly
the view that the evidence
the main prosecution witnesses upon which the Court relied in finding premeditation leaves much to be desired and that, therefore, the findings and inferences based thereon are unsafe. I agree in particular that the evidence did not warrant the conclusion that the appellant was shadowing the victim or that he and his companions waylaid him at the scene
the crime in Thessaloniki street. The latter finding especially is, to my mind, quite in Consistent with the behaviour
the deceased, who, whilst travelling with his companions in a convoy
three cars for safety reasons, as it was stated, saw fit all
a sudden to accelerate and overtake the car
the convoy which was in front
him at the precise moment when the ear
the appellant was seen travelling ahead
them and having done so to follow the appellant into Thessaloniki street. One
the most vital prosecution witnesses on this issue was prosecution witness 7, CritonGeorghiades, who witnessed the incident through the shutters
the window
his first-storey house which almost overlooks the scene
the crime. This witness in the course
his evidence before the Assize Court, inter alia, stated that after the car
the deceased came to a standstill on the left side
the road lie saw the appellant firing two or three shots at the deceased who was still sitting in the driver's seat
his car almost from point blank range. This fact the Court concluded was indicative
appellant's determination to kill the deceased. This conclusion
the Court would not be open to any complaint or criticism but for the fact that this same witness when giving evidence at the inquest almost twenty months earlier said nothing about seeing the appellant firing the contact shots or any shots at all. All he said with regard to the appellant was that he saw him holding a pistol in his hand. He explained this discrepancy by saying that the way a statement is elicited before the Coroner is different from the way one's evidence is elicited before the Assize Court and that while giving his testimony before the Coroner at the inquest he gave emphasis to the fact that he identified the person he saw firing and he thought that other questions would follow and when he finished his testimony before the Coroner, he said, he was left with the impression that he had omitted something. As stated above the witness never stated at the inquest that he sawthe appellant firing at all and I find it difficult to comprehend how a. discrepancy
this nature in a case such as the present did not raise, at least, a suspicion in the mind
the Court that the evidence
the witness might not have been as reliable or accurate as they found it to be. Apart from the evidence
this eye-witness (P.W.7, Georghiades) the prosecution endeavoured to establish the contact shots by the evidence
the ballistics expert P.W. 39, Inspector Christofides. But the way they went about it was, in my view, hardly fair either to the witness himself or to the case. The witness was shown for the first time the jacket that the deceased was wearing on the night
the 5th April, 1973 when he was killed, in the course
the hearing
the case before the Assize Court and was asked whether in his opinion, two
the holes in the jacket had been caused by contact shots. This jacket had been in the possession
the police for almost four years and the witness himself stated in evidence that if he were to give an expert opinion scientifically the exhibit should have been submitted to him the earliest possible. He further admitted that in some cases it was necessary to ascertain the existence
gun-powder but where there was a tearing
the cloth arid the signs
gun-powder residue were evident a chemical analysis might not be necessary. Asked whether by looking at the two holes on the exhibit jacket he could say that there was, residue
gun-powder or evident signs that they had been caused by shots the witness replied that there was blackening round the holes "which resembles very much, with signs
gun-powder" but he could not say with the naked eye whether there was unburnt gun-powder. As regards the nature
the wound caused by a contact shot the witness stated that it is the laceration
the wound which is a characteristic
a contact shot but he admitted that he was never given a detailed description
the wounds which corresponded to the two holes on the jacket which were allegedly caused by contact shots but that he, had the, opportunity to see once a booklet
photographs which showed the wounds on the dead body but he never had a detailed description such as the diameter
the entry and exit wounds and their details. One would have thought that the witness would have been in a much better position to give an accurate and correct answer to the question had he been given the opportunity to carry out a scientific examination in his laboratory at an early stage rather than having to rely on what lie could" perceive with a naked eye and from material hardly sufficientfor the purpose; And although the witness concluded that, in his opinion, the holes on the jacket had been caused by contact shots one is, in the circumstances, left wondering about the correctness
his conclusion. The state
the evidence in this case on the issue
premeditation is a matter
grave concern. Having, regard to its nature and quality I feel that it is not possible for, me to say that the verdict
the Court on this issue was either safe or satisfactory. The least that can be said is that there is room for grave doubt whether the killing was premeditated, and that the appellant is by law entitled to the benefit
such doubt. In the light
the above I would allow the appeal to this extent, set aside the conviction for premeditated murder and substitute therefore a conviction for Homicide contrary to section 205
the Criminal Code. HADJIANASTASSIOU, J.: On March 3, 1977, at the Assize Court
Larnaca, the appellant was convicted
premeditated murder
the late GeorghiosFotiou
Larnaca, acting in concert with two accomplices, contrary to ss. 203 and 204 (as amended by Law 3/62) and ss. 20 & 21
the Criminal Code, Cap. 154. He was sentenced to death. He now appeals against conviction on a number
points
law. The facts can be put very shortly and are somewhat exceptional. On April 5, 1973, shortly after 9.15 a.m. the murder
the late Fotiou took place, during a very critical period for the Republic
Cyprus regarding law and order. The victim
this terrible murder was the owner
a petrol station situated at Makarios III avenue in Larnaca. He was residing with his family at his house at Singlitiki Street, not far from GrivasDigenis Avenue, which is a well lighted road. His brother in law, Harris Georghiou, resided ina house adjoining that
the victim at Eleftheria Avenue, a side road
GrivasDigenis Avenue. The two aforesaid avenues are parallel to each other, situated not far
f the one from the other, at a distance estimated to be in the region
30-40 meters. It is in evidence that one can reach Maria Singlitiki Street from Thessaloniki Avenue following what may be described as an oblique route. The victim was a member
EDEK party and, on April 1, 1973, an ugly incident took place, viz., a bomb made up from a stick
dynamite was planted .at his petrol filling station but fortunately it, was discovered before it exploded by HarrisGeorghiou and was subsequently disposed
by P.C. TheofanisEfrem. After that incident quite naturally, the victim was feeling worried about the safety
his property and
his person, and according to VladimirosCharalambous, a friend, CharalambosGeorghiou, a brother-in-law, Harris Georghiou, another brother-in-law, and NeofytosAndreou, an employee
Photiou, the discovery
the bomb, as well as that there was shadowing
their movements by the appellant, made them apprehensive about their safety and they decided to move together because they through they could find safety in numbers, particularly when leaving the petrol station at night time. According to VladimirosCharalambous, the following up started after some incidents at the "Corner" cafeteria which took place on March 23 or 24, 1973. It was the case for the prosecution that on April 5, 1973, the appellant repeatedly followed the movements
the victim before the fatal events which took place at Thessaloniki Avenue later on in the evening. In the meantime, at about 7.00 p.m. Fotiou drove to the house
his brother-in-law CharalambosGeorghiou which is situated in the Kalifadjia area. He was accompanied by ViadimirosCharalambous. According to the latter, on three occasions at three different parts
the town, the appellant was seen following them, having as a passenger in his car a. certain ClavdiosNeocleous. In cross-examination, VladimirosCharalambous was questioned about his failure to indicate at the preliminary inquiry which took place in January, 1976, some
the details
the alleged following up near the premises
the Bishopric, and in particular his omission to state that at some stage the car
the appellant was following them by what has been referred to as "cross-roads". This witness, in his testimony said that he had no explanation to
fer for that omission and he admitted that he ought to have mentioned that fact at the preliminary inquiry as well. He further said that on their way back to the petrol station the car
the appellant was seen disappearing inside the premises
the Bishopric
Kitium, and finally, on their return to the petrol fillingstation at about 8 p. m. he saw the appellant once more driving his car slowly outside the station
the victim; and it appeared to him that the former was watching their movements in the station, whilst in company with two passengers. He identified one, but not the other.Apparently, the incidents
following up or watching the said station continued, and just before closing down shortly after 9 p. m. witness Harris Georghiou and NeofytosAndreou saw the car
the appellant passing once more outside the station with two passengers in it, heading in the direction
the police station. There was further evidence by P.C. Kerimis that the car
the appellant was seen by him at 9.00.-9.05 p. m. on the fatal night coming from the direction
the premises
EPA Club to Makarios III Avenue and heading in the direction
the petrol station
the victim. That policeman identified the appellant as the driver
the car and also another person alleged to be an accomplice, sitting in the rear passenger's seat. It was indeed the case for the prosecution that prior to the incidents at Thessaloniki Avenue, the appellant followed the movements
the victim before their encounter, but .the appellant, although he admitted that he passed outside the petrol station at times, he denied the allegations that he was shadowing the movements
Fotiou. On the contrary, he alleged that he himself was followed by the deceased on two occasions. On April 5, 1975, the fatal night at about 9.00 p.m. Harris Georghiou, NeophytosAndreou and the deceased left the station together traveling in a convoy
cars for safety reasons in order to reach their homes. When they came to a point on GrivasDigenis Avenue, the victim, for reasons not known-Although he was apparently in the middle
the convoy-overtook the car ahead
him, and that happened, according to Andreou, when the appellant appeared in front
them at the petrol station
Karkas. In the meantime, Georghiou had branched
f into Eleftherias Avenue without noticing the presence
the car
the appellant on the road, and when the victim was about to turn into Thessaloniki Avenue. What followed when the victim entered Thessaloniki Avenue has been a matter
controversy between the Prosecution witness and the appellant. When Andreou, an employee
the victim, entered Thessaloniki Avenue, he saw the appellant alighting from his car which was parked on the left hand side
the road, armed with a pistol or a revolver in his hand, standing in the middle
the road. The appellant was signaling to the victim to stop. The latter stopped in the middle
the road keeping his engine running. Then the appellant proceeded to right
the driverby the window pane, and stood by the driver's door, asking Fotiou to alight, using these words; "Kateva Kato re, esipou to aftokinito", or "Kateva Kato". At the same time, his companions alighted, also armed with automatic sub-machine guns, and took positions to the left
the car
the victim. The one was standing towards the front and the other, Clavdios, towards the rear
the car. Apparently, because Fotiou was not alighting from his car, the three culprits took positions round the car
the victim-the two companions
the appellant having their weapons equipped with two magazines each. In the meantime, Clavdios asked witness Andreou to alight, having earlier stopped, and having alighted from his car, kept his hands up as he was ordered. It appears further that the appellant repeated his demand for victim to alight from his car, and started banging on the driver's window pane with the weapon he had in hand. At that stage, Andreou saw Photiou locking his door and then extending his arm to the left, giving the impression that he was also locking the passenger's door at the same time, thus evincing a definite disinclination to comply with the insistent demand
the appellant that he should alight. Immediately afterwards, the witness added, the appellant fired two short at the victim and as a result
those two shots the matter made an effort to drive forward, and a burst
fire was directed against him by one
the culprits. Because
that burst, the attention
Clavdios was directed elsewhere, and taking advantage
that momentary inattention, Andreou ran in the direction
GrivasDigenis Avenue and continued running as bullets were flying round him, in order to prevent him from escaping However, he added that as he was leaving he saw the car
the victim heading towards the left ditch He finally rang up Georghiou informing him
the events which had happened on that night. In the meantime, CritonGeorghiades, whilst in the study at his home at 2 Thessaloniki Avenue, heard someone shouting "Kateva Kato re, exo", then insults, and the noise produced when there was banging on the glass. Apparently, in order to have a better look, he moved from his position to reach his window opening into Thessaloniki Avenue, and on his way to the window he switched
f the light. By the time he reached the window, he heard shots and bursts, but he was unable to tellthe sequence in which such shots had been fired. He explained that his experience in the use
weapons was extremely limited. Furthermore, he was unable to say whether the bursts
fire followed shots or vice versa, and added that it was not easy for him to distinguish between a pistol shot and a single shot fired from an automatic submachine gun, as opposed to a burst. When he reached the window, he saw through the grills a red coloured car with its lights on, moving towards the open space adjacent and to the left to Thessaloniki Avenue. In the meantime, as the car was moving, his attention was diverted to his left by a burst
fire, and when he turned to his right he saw a person standing in the street right outside the driver's seat, firing two or three shots towards the driver's seat. That person, he said, stood at a distance
between half and one foot from the driver's door; and a moment later he identified that person as the appellant who entered a Morris traveler car Reg. No. BK. 615, that was stationary virtually opposite his house, and drove away. He was unable to identify the person standing next to that car, apparently one
the companions
the appellant. Counsel on behalf
the appellant challenged the version out forward before the trial Court by both witnesses NeofytosAndreou and CritonGeorghiades (a member
the political bureau
the Socialist party
EDEK); and the appellant in a statement from the dock gave a different account
what happened at the scene. But to witness Andreou it was suggested that both in his testimony before the Coroner inquiring into the causes
death
the late Fotiou, on July 26, 1975, and before the examining Judge at the preliminary inquiry, he testified that the appellant had fired shots after Fotiou started
f from his stationary position. In view
this improvement allegation put forward by the defence, it is really surprising that the witness said that he had no clear recollection
his testimony before the Corner when the facts were fresh in his mind, but he admitted the correctness
the suggestion made to him as to what he said at the preliminary inquiry about the serious discrepancy, but nevertheless, he maintained that the version
events which he gave before the Assize Court was the correct one, viz, that the appellant fired twice at Photiou and then after the two shots the latter tried to leave the scene. There was a further contradiction, because before the Assize Court that witness said that the number
shots filed at Fotiou weretwo or three, and at the P.I. he put the number between one and two. On the other hand, it was suggested to Georghiades that he lied before the Assize Court on the basis
a comparison
his testimony before the Assize Court and the Coroner. Having looked at his testimony before the Coroner, it appears that whereas he identified the appellant at the scene, he said, nothing about seeing him shooting at the victim from a close range or all, and I find myself in agreement with counsel for the defence that a truthful witness could not be expected to forget such an important piece
evidence. When this witness was asked the reason why, he replied that he was always with the impression that he left unwittingly something out from his account
the events given by him before the Coroner. This statement, to say the least, is entirely unacceptable because, in my view, being a member
a political party, he had every, justifiable, reason to be against the man whom he had seen killing a member
his own party. On the night
April 5, 1973, Police Constables TheofanisEfrem and LoucasPetrides, in passing along Thessaloniki Avenue, noticed the car
the victim stationary in an oblique position on the left hand side
Thessaloniki Avenue, on their way after dinner to resume their duties at Larnaca Central Police Station. When they were at a distance from the junction
Thessaloniki and GrivasDigenis Avenues, estimated to be in the region on 170-180 meters, they saw a, car coming in their direction with headlights on. At the same time they heard shots. When they came closer to the scene, another car started moving in their direction at a great speed. In cross-examination, P.C. Petrides conceded that, at the preliminary inquiry he stated that he had heard bursts only, but maintained before the Assize Court that he had heard both shots and bursts. The two, police constables managed to take the registration number"
the car BK 615, which admittedly belonged to the appellant It was further stated that as that car approached their vehicle in which they were driving, and the" two vehicles were virtually side by side, bursts were fired in the air from inside the car BK 615. Then the two police constables approached the scene where the car
the victim was in its resultant position, and parked their car on the left-hand side
the road near the junction
Thessaloniki Avenue with GrivasDigenis Avenue. They also noticed the car with its lights on and without inspecting the said car, P.C. Petrides telephoned the police from the nearby coffee shop-police constable Efrem remaining on the pavement keeping watch Within a few minutes a police patrol car arrived headed by PS. Victor Ioannou, together with P.C Constantinou. There was another policeman in that police car, but for reasons not known, the prosecution did not call him, and although during the appeal counsel for the appellant was complaining that a witness ought to have been available to him, in my view, the complaint is not justified because once counsel knew it was for him to decide whether it was to the interest
his client to obtain a statement from him, and/or to call him to give evidence. The police, having parked their car near the car
the victim, on the left side
the road, they alighted immediately and approached the said car According to P S Ioannou, the victim was leaning on the steering wheel and as they opened the driver's door they realized that Fotiou was unconscious and his body began, falling outside when the door was, opened. P S Ioannou, with the help
his police colleagues, Kythreotis, Petrides and Efrem, removed the body
the victim and placed it in their car DM 747. Immediately they carried the victim to the hospital for medical treatment. Counsel for the appellant cross-examined the police at length as to the circumstances under which they approached the car
the victim, the manner
opening the door
the car and the way they removed the body
the victim Furthermore, counsel suggested that one
the police constables who assisted in the removal
the victim from his car took possession
a pistol found inside the Car and handed it over shortly afterwards to the brother-in-law
the victim Harris Georghiou on his arrival at the scene or the incident shortly after its occurrence. It is true that Harris Georghiou, having heard the shots and having received a telephone call-apparently from NeofytosAndreou, he drove to the scene, but according to him, he kept at a distance and in no way approached the car
the victim or any
the police constable at the scene
the incident. He denied the allegation that a police constable handed over to him a pistol belonging to the victim. There was a further allegation on behalf
the defence that P.C. MariosKythreotis was the first to open the door
the car
the victim and hadthe opportunity to remove the pistol allegedly in the possession
the victim. On the other hand, P.S. Ioannou in his testimony before the Assize Court, gives details
how they approached the car
the victim simultaneously with P.C. Kythreotis. He further said that he opened the door, he pulled the deceased slightly upwards in order to facilitate his removal from the car and that subsequently with the help
the police constables Petrides and Kythreotis they moved the body
the victim to the police car. There was further corroboration by P.C. Efrem
the allegation
Harris Georghiou that his stay at the scene was momentary and that he did not approach P.C. Kythereotis. Furthermore, in spite
the fact that witness Eftrem modified the evidence he gave at the preliminary inquiry, when he stated that it was Kythreotis who opened the door, and said that P.S. Ioannou and Kythreotis approached the car simultaneously and that he was unable to say which if the two policemen opened the door, nevertheless, there is no reliable evidence as to what had happened to the pistol, allegedly in the possession
the deceased, having regard particularly to the rest
the articles found in the car
the victim. In any event, one should not forget the tragic situation during that period when the police and a fraction
the people were divided and law and order has suffered a serious blow. When the victim-was removed to the hospital, Sgt. Ioannou and P.C. Efrem remained guarding the scene until the arrival
Chief Inspector Makris, who arrived there at about 21.30 hrs He gave instructions to a number
policemen who were summoned to the scene including NeofytosSolomonides, a sergeant serving with the CID who was detailed as the investigating
ficer and, the police photographer P.S. PavlosPapachristoforou. The investigation began and the photographer took a number
photographs
the car
the victim and the spot where the expended cartridges were found. On the other hand, the investigating
ficer found inside the car, two projectiles 45 calibre in the open space between the driver's door and the driver's seat,a third projectile 9 mm. caliber on the floor
the car in front
the driver's seat and an expended cartridge case 9 mm. on the floor
the car behind the driver's seat. In the car and under the mat covering the floor in front
the driver's seat they found a pistol or revolver leathercase adjusted on a waist belt containing four live rounds
ammunition 9 mm. calibre. There was a search in the street also and on the berm near the car
the, victim he found scattered about a number
expended cartridge cases. He also found one live round
ammunition 9 mm. calibre and upon the removal
the car he recovered a projectile from a position near the front left wheel
the car
the victim in its resultant position. According to the investigation
ficer, he recovered in all eleven cartridge cases. 45, two
which were found the following day at points 40 feet and 50 feet away from the car
the victim in its resultant position in the direction
the leper home. He also recovered from the street three cartridge cases.9. mm. calibre, in addition to the one recovered under the car. He then prepared a plan to scale on which he sketched the position
the car in its resultant position and indicated the points where the expended cartridge cases were recovered from exhibit 11. It appeared from a study
that plan that the expended cartridge cases were found at two separate spots at the scene separated between them, at a distance in the region
70 feet. In fact, P.S. Solomonides explained that the photographer was not able to photograph all the cartridge cases foun4 at the scene as only ten had been recovered, by the time he took photographs 14, 21 and 22. The expended cartridge-cases found by P.S. Solomonides at the scene as well as the projectiles were submitted to the ballistics expert for examination and his opinion. The findings
P.S. Solomonides at the scene are supported in some respects by the testimony
Chief Inspector Makris, particularly as to the calibre
the cartridge cases found at the scene and their number. In fact, it was the testimony
both Chief Inspector Makris and the investigating
ficer that the expended cartridge cases were photographed in the place they were found excluding
course expended cartridge cases that were recovered from the scene by P S Solomonides subsequent to the departure
the photographer from the scene. The photographer photographed also the car and, it is apparent from these photographs that the window pane next to the driver's seat, had; been smashed and had virtually disappeared, whereas the window screen had two big holes and was shattered all over. It appears further that the only two panes that were unaffected were the rear screen and the rear right window pane. According to Ag. P.S. Sakkadhas, on the following morninghe collected fragments
broken glass from the scene. And on the following, morning from the, windscreen and the, window pane by the driver's seat from a point under the frame
the window, .that were subsequently submitted to Mr. Symeou, the Government analyst, for examination and analysis. Ag. P.S Sakkadhas also recovered from the scene, a projectile, that: he found to be lodged at" the rear
the front passenger's seat in the car
the deceased. He had collected also fragments
glass from the floor
the car
the accused earlier and on that date he submitted them for examination by the Government analyst. At the hospital, the victim was received by sister Kyriakou, who applied first aid until the arrival
Dr. Poyiadjis, the duty
ficer for the night. I must add that the doctor arrived at a commendable speed, and within a matter
minutes he diagnosed that GeorghiosFotiou was dead. Then sister Kyriakou unclothed the deceased and arranged for the removal
the dead body to the mortuary
the hospital. As she was undressing the victim, a projectile fell from the hand
the deceased, but, neither P.C. Petrides nor sister Kyriakou had a clear recollection from which hand it fell. Sister Kyriakou also recovered from the possession
the deceased a magazine Ioaded with 10 live rounds
ammunition 9 mm.
which P.C. Petrides took possession for purposes
investigation. In due course the magazine was examined by Ag. Inspector Andreas Christofides, and was found to be
the type that fits on a luger automatic pistol; he also examined the rounds
ammunition which he found to be serviceable and were
9 mm. caliber. P.C. Petrides received also the clothes
the victim, but apparently, the shirt
the victim was not produced at the trial and no one was in a position to inform the Court
what had happened to it. The body
the victim was paced in the mortuary under police guard until 10 o'clock on the following day when a post mortem examination was conducted by Dr. Kyamides, the Government pathologist in the presence
Chief Inspector Andreas Makris, who gave directions as to the investigation
this case; Ag. Inspector NeofytosSolomonides (then a police sergeant); the investigating
ficer
the case and KyriakosTheodotouPhotiou, the brother
the victim, who identified the body. Dr. Kyamides described in detail the injuries he found on the victim, and according to his opinion as to the cause
death, the deceased met with his death as a result
shock and haemorrhageproduced by the multiple wounds inflicted upon his body, though no single wound in itself produced death, in that none
the wounds had pierced any
the ultra sensitive parts
the body, something that could be expected to cause instantaneous death, such as the brain substance and the heart. The doctor had no difficulty to state that all the wounds had been caused by bullets. He further removed from the body
the victim 2 projectiles (one from the throat by the larynx and the other from the small finger
the left hand). The remaining projectiles that had pierced the body
the deceased had both entry and exit wounds, caused by a bullet, except for a wound in relation to which the projectile had been lodged into the body
the victim and the doctor considered it inappropriate to attempt to recover it. There has been a lot
criticism by counsel for the appellant, and I think I share the criticism, because I am not convinced that the reasons put forward by the doctor. i.e. that it was inappropriate to attempt to recover it, were justified, and in any event, it deprived both the prosecution and the defence
checking, the calibre
that projectile. The two projectiles that had been removed, from the body
the victim were submitted for examination. It is significant to state that the two projectiles were
different calibre, a fact indicating that the victim had been hit from bullets fired from more than one firearm. The two projectiles were
45 and. 9 mm. calibre. Quite rightly, counsel for the appellant cross-examined at length Dr. Kyamides with regard to the bullet wounds found by him at the back
the deceased and on the surface
the wound on the shoulder blade became a very important point in the whole
the cross-examination, but Dr. Kyamides was not in a position to help a lot on this thorny point, because he disclaimed any special knowledge in reading photographs and insisted, irrespective
the impression one is apt to get by viewing photograph 36, that the wound was where he described it to be. In order to resolve this point, the prosecution called for the first time evidence before the Assize Christofides, who also examined the coat
the victim-which was kept at the police station wrapped in paper for a period
4 years, the shots that caused two
the holes in the jacket, were caused (a) the hole at the back by a contact shot, that is a shot fired from a maximum range
2 inches from the jacket (b) the hole by the right shoulder
the jacket caused by a contact shot fired from a slightly longer range, that is to say, from a maximum distance
6 inches from the hole. Then the ballistic expert, having explained his reasons for coming to that conclusion, said that the insignia and characteristics
those holes make further examination unnecessary considering that the holes had been caused by what he described "contact shots". Furthermore, this ballistic expert examined (a)Eleven expended cartridge cases .45.calibre recovered by. the investigating
ficer at the scene
the incident;(b) four expended cartridge cases 9 m.m.calibre recovered by Inspector Solomonides, two from a point near car GL 691 in its resultant position, one from a position inside the car, and one from a point at the scene by the first bunch
scattered cartridge cases nearer to the right facing the direction
the leper home in comparison to the other cartridge cases 13 feet from the left edge
the road facing in the same direction
the leper home; (c) All the projectiles and live round
ammunition found on the body the victim and in the car
the accused; (d) Eight expended cartridge cases .45 recovered from the car
the accused; and (e) two expended cartridge cases 9 m.m.calibre recovered from the same car. The ballistics' expert reached these conclusions:-
the M. 3 type; and that, it was the same machine gun that discharged the eight cartridge cases .45 that were found in the car
the accused;
9 m.m. found in the car
the accused had been fired from an automatic machine gun known as Marcip. I think I would recall that according to the testimony
NeophytosAndreou, the two companions
the accused carried a sub machine gun each.
evidence, may draw the inference that at the scene
the incident shots were fired not only from an automatic sub machine gun, but from a pistol as well. The ballistics' expert further explained that the cartridge cases found inside, the car
the victim might have been discharged by a weapon held by a person firing at him or from a weapon fired by the deceased. In effect, the testimony
the expert ion this point was that the cartridge case had been discharged from a weapon fired inside the car or from a position very near the car, depending on the position
the weapon
the Vulter or Luger type, or from a type
Browning pistol; and
the victim could take a pistol
the Luger, type and the rounds
ammunition found in the possession
the victim were
the 9 m.m.calibre. The ballistics' expert, quite understandably, was unable, because
lack
sufficient material before him, to identify the weapon from which any
the projectiles had been fired except that he thought that they had been fired from an automatic weapon. He further explained that there are automatic machine guns as well as automatic pistols falling within the description
an automatic weapon. In substance, I think I would reiterate that the most significant part
the evidence
this ballistic expert, who was cross-examined at great length suggesting to him that his examination unless supported by laboratory tests, was not
any weight, was that the shots that caused two
the holes in the jacket
the victim were caused by contact shots. The position was further complicated when the expert witness was questioned as to the hole above the left side
the pocket
the jacket in question, and his reply was that he could not tell the distance from which the shots were fired because it was different from the previous cases, due to the absence
signs
tearing or gun powder residue around the hole or due to the fact that there was no feasible gun powder residue The same version was given by him with regard .to another ho1e under the left upper pocket
, the jacket. Then, the said witness, having agreed that for investigation purposes the holes on the jacket
the victim ought to have been examined the earliest possible, he was questioned in these terms - "Q Do you agree with me that order to determine the distance from which the shot had been fired we had to have a laboratory analysis
the gun powder if there was gun powder? A. In some cases we make this analysis; where, however, there is a tearing
the cloth and the signs
gun powder residue are evident, we avoid the chemical analysis. Q. Can you tell by looking at the two holes above referred to that there is a. residue
gun powder or evident signs that they have been caused by a shot? A. There is a blackening round the hole which is very similar to traces
gun powder. Q. Can you say whether there is unburned gun powder? A. No, not with the naked eye. Q. If we have a contact shot do you agree that we shall have a bursting
the flesh? A. It is the laceration
a wound which is characteristic
a contact shot. Q. Can you tell us in relation to the jacket before you regarding the first two holes the type
the projectile that had caused them and the quantity
gun powder that the round
ammunition contained? A. I cannot tell the calibre
the projectile in the case
the first hole I noticed that the gun powder is limited he diameter
one inch approximately which is an. indication
the fact that the shot had been a contact shot I cannot say the quantity
the gun powder that the round
ammunition in .question contained. Q. Looking at the first hole which you described, on the jacket if the shot had been fired vertically, i.e. the barrel
the weapon was in a vertical position in relation to the jacket, would you expect it to cause the hole you see in front
you? A. Yes. Q. Assuming that the victim
this shot was a driver sitting inside the car with the window pane closed, and assuming that the shot came from someone firing outside the car while the windows Were closed, would you expect to find these results speaking about the first hole? A. No, under no circumstances" In fact, laboratory tests were carried out only by the Government analyst, Dr. Symeou, regarding the fragments
glass submitted to him by the police and came to the conclusion
that all the fragments had emanated from the same pieces
glass. There is no doubt that it was all along the case for the prosecution that the appellant and his accomplices waylaid the victim at a spot at Thessaloniki Avenue and killed him in perpetration
a plan conceived long before the appellant found the opportunity to execute the victim and that the details
which were worked out after extensive shadowing over a period
time designed to elicit the movements
the victim during day and night. On the contrary, the appellant, after the incident at Thessaloniki Avenue, abandoned his car on the way to Meneou and disappeared. He appeared again on July 15, 1974,-on the same day
the Cyprus Coup-and took possession
his car in September, 1974 on the instructions
the then Divisional Police Commander
Larnaca This indeed, presents another deplorable situation which, pieced together with the failure
the police to keep, or indeed examine the windscreen
the car
the victim, deprived once again the, responsible authorities to check whether the broken pieces
the windscreen came from inside the car and/or from the outside. Although a warrant for the arrest
the appellant had been issued it was not executed until November 21, 1976. Finally, when the appellant was arrested by the police, and having been cautioned, he replied "Take me to Evdokas" Then in answer to the formal charge, the appellant denied that he had committed the crime he now faces. The appellant, as I said earlier, called only one witness. He did not go into the witness box himself, but elected to make an unsworn statement from .the dock. In the course
the statement he denied firing at the victim and said:- "I was carrying a gun years before the 4th April, 1973, and so were many
my friends and acquaintances In .that t year before 4th April, 1973 the situation in Cyprus amongst the Greeks was abnormal and the same position was prevailing in Larnaca We were divided in supporters
Makarios, Grivas, Lyssarides, Leftists and others We, the supporters
Grivas who constituted the unionist party, were the victims,
many oppressions by the state and the parastate Many incidents took place, and there followed destruction
property, beatings, murders
unionist fighters, and, also the blowing up
houses
unionist fighters. Among the properties destroyed in "Larnaca were the blowing up
the Scorner cafe the cars
YiannakiSoteraki,
KyriakosDifros the book seller, many others. The incidents at the Corner cafe reached the District Court
Larnaca and the Supreme Court I and my friends who were with me were among those who volunteered for protecting the ex Bishop
Kitium who was a supporter
the unionist party. Among the other disputes was also the ecclesiastical problem. Moreover as I was residing in an isolate place in fact in an almost desolate place in a farm house near the bypass
Larnaca, and because my house was also close to an area inhabited by Turks, I was carrying arms almost continuously. Furthermore the Turks, by an announcement
Bayrack radio station had promised to pay an amount
five thousand pounds to any onewho, would kill me I participated actively in all armed struggles which took place in this country. It is a fact that neither myself nor my party trusted the security
the State in the hands
the Government because many policemen had been seen planting bombs at various places I was acquainted with Fotiou for many years. I was on good terms both with Fotiou, his brother Kyriacos and his father. I was a self-employed person at that time and I kept a farm. I was delivering milk to various houses within Larnaca with my car BK 615. Among those areas was Drosia and the area opposite the petrol station
Fotiou. The distribution was taking place at different times because the cows were milked very early in the morning and in the afternoon as well. During the deliveries
milk I was -passing almost every time from the petrol station
Fotioubecause it was on my way and near my house. I am left handed and I, and my friends who were with me late in the afternoon
5th April, 1973,were armed as always Because my friend Kakis was keeping his car- which was his only property in a garage exactly opposite the petrol station
Fotiou, we passed from that area to check his car, as we were worried due to the abnormal situation. In fact that very same night Kakis' car was destroyed maliciously from an explosion. Whilst we were on the way to GrivasDigenis Avenue, I turned into Thessalonikis Avenue, but I was compelled to stop behind a stationary driver in order to allow a car coming from the opposite direction to pass. At that time, I noticed that Fotiou had stopped abruptly behind me. Because on the same day in the afternoon we had noticed Fotiou with Vladimiros coming close behind us from the police station up to the Pallas square, and because we got the impression that they were following us, I considered it right to alight from my car and ask Fotiou with whom we were on good terms, why he was following us. We were exactly outside an, open cafe in an illuminated area on the highway, and people and cars were coming and going I did not signal to Fotiou to stop only noticed him stopping behind me and then I alighted from my car I went and stood next to the window
the car
Fotiou, and I saw that he had a pistol on the seat next to him. He tried to take it. Then I drew my gun also for protection and knocked on his window, and because it was closed I shouted to him loudly and repeatedly why V he was following us Since he did not reply I continued knocking at the window and shouting and asking why he was following us telling him to alight -from the car so as to have a talk. Whilst I was standing next to the window
Fotiou I noticed his employee arriving at the scene. At that time, also noticed my friends having alighted from the car coming towards me I continued shouting to Fotiou and I heard my friends shouting to Fotiou's employee to put his hands up. Later on I heard the loud voice
a woman coming from the direction
the avenue. I turned towards her, I saw a woman and I told her not to be afraid and to be on her way. At the time I turned left in order to see that woman, I had to turn completely towards my left because I cannot see with my left eye which is damaged At the same time I was forced to take one or two Steps At that moment when I had turned completely, Fotiou who had not switched
f the engine
his car accelerated suddenly and took
f I turned to see him leaving and I saw him firing his pistol in the direction
my friend. I heard bursts
an automatic weapon and I saw the car
Fotiou turning abruptly to the left
the road I did not approach the car
Fotiou where it stopped I got into my car and immediately drove away Whilst on our way, we came across the car
P.C.Phanos, while shots were being fired from the left side towards the car
Fotiou and into the air I did not fire any shots and I did not have any such intention We had never planned or ever thought
killing Fotiou We had nothing against the man. Had we had the intention
killing him I would not have stayed for ten minutes in the avenue and particularly outside the open cafe shouting at him particularly when I knew that he was carrying a pistol P C MariosKythreotis admitted to me that he had taken the pistol
Fotiou and had given it to Harris Georghiou. This happened in the migration
fice Larnaca Police Station after the coup and also in the presence
Sergeant Kyrkinis and another policeman I have nothing else to say". After a long and detailed judgment by the Assize Court, they accepted the evidence for the prosecution-not overlooking that key witnesses were connected with the victim or indeed that they were his friends or relatives and reached a verdict
murder by premeditation against the appellant in reaching that conclusion the Court said:- "They showed total disregard about the implications
any one seeing them moving armed and took up such positions round the car
the deceased consistent only with an intention on their part to kill him. And they did kill him shortly afterwards in colds blood showing brutal determination not to take any chances with the
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