KHADAR & ANOTHER ν. THE REPUBLIC (1978) 2 CLR 132

(1978)2 CLR 132 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1978)2 CLR 132 1978 July 31 [Triantafyllides, P. Stavrinides, L. Loizou, Hadjianastassiou, Malachtos, JJ.] SAMIR MOHAMMED KHADAR AND ANOTHER, Appellants, v. THE REPUBLIC, Respondent. (Criminal Appeals Nos. 3865, 3866). Assize Court-Special sitting of-Not an "exceptional Court" or an "ad hoc" Court contrary to the provisions of Article 30.1 of the Constitution. Death sentence-Fixing date of execution of-Not contrary to Articles 8 and 28 of the Constitution-Rule 5A of the Criminal Procedure Rules not ultra vires Article 163.1 of the Constitution or section 176 of the Criminal Procedure Law, Cap. 155. Criminal Procedure-Motion in arrest of judgment-Could not have been made on the ground that the trial Court had no right to fix the date of execution of a death sentence-Section 79 of the Criminal Procedure Law, Cap. 155-Rules of practice in force in England not applicable. Criminal Law-Appeal against conviction-Premeditated murder-Unsatisfactory verdict-Evidence of extrajudicial confessions-Disclosed only at the trial and not at preliminary inquiry-Could not be safely relied upon. Criminal Law-Defence-Points raised by defence-Approach of the Court-Whether trial Court has to refer to all points raised by the defence. Criminal Law-Failure of accused to give sworn evidence in his own defence-Comment by trial Court-Not a sufficient reason for allowing the appeal in the particular circumstances of this case-Proviso tos. 145

(1)(

1. b)of the Criminal Procedure Law, Cap. 155 applied. Evidence-Expert evidence-Function of expert witness-Whether a [*133] ballistics expert has to produce at the trial photographs of all the objects in relation to which he testifies. Criminal Law-Circumstantial evidence-Prosecution's case resting on circumstantial evidence-Rule applicable-Whether it is a Rule of Law that a Court must not convict unless satisfied that the facts proved are not only consistent with the guilt of accused, but also such as to be inconsistent with any other reasonable conclusion. Criminal Law-Common design-Law applicable-Premeditated murder by shooting-Two culprits involved-No evidence as to which one of the two actually fired the fatal shots-Unless the Prosecution proves that the killing was the result of an unlawful common design to which both accused were parties, both accused should be acquitted. Criminal Law-Premeditated murder-Notion of premeditation-Principles of law applicable-Murder committed by two culprits in furtherance of a preconceived and well prepared plan to which both were parties-Committed with premeditation. The two appellants were found guilty of the offence of premeditated murder and sentenced to death. The victim was Yusef El Sebai, late of Cairo, who came to Cyprus for the purpose of participating in the conference of the "Afro-Asian Peoples Solidarity Organization" arranged to be held at the Nicosia Hilton Hotel; he died, in the morning of February 18, 1978, of shock and haemorrhage due to fatal injuries caused by three bullet wounds which were inflicted on him immediately before his death while he was outside the book-shop in one of the main corridors at the ground floor of the said hotel: The following statement of facts is taken from the judgments: The appellants, who were both foreigners, but of different countries of origin had come to Cyprus a few days before the murder. They were repeatedly seen together at almost all hours of day and night. Appellant 2 was staying at the Hilton Hotel and appellant 1, who was staying at another hotel in Nicosia, spent the night of February 17 to 18 also at the Hilton hotel, in one of two communicating rooms used by appellant 2. There was no direct evidence as to the identity of the person [*134] or persons who fired the fatal shots. The two appellants appeared at the scene immediately after the shots were heard, as the victim was seen falling dead to the ground. Appellant 2, who was aimed with a pistol and a handgrenade, disarmed in the hotel lounge, which was very near to the scene of the murder, two policemen, who surrendered to him two revolvers. He then handed one of these revolvers to appellant 1, who was, also, armed with a handgrenade. Appellant 1 entered the ballroom of the hotel, which was, too, very near to the scene of the murder and where there was taking place the "Afro-Asian Peoples Solidarity Organization" Conference, in which the victim was a participant; there appellant 1 ordered all the delegates, including the two policemen, to leave the ballroom and herded them at gun point as hostages along the corridor, and past the dead body of the victim, to the cafeteria of the Hilton hotel, which is to be found further down the same corridor. To that same cafeteria appellant 2 brought other persons as hostages, having rounded them up at the lounge of the hotel. The two appellants were seen and heard talking together in Arabic, in the cafeteria; they, also, tied the hands of their hostages and forced one of the policemen, who was armed, to surrender his revolver. By threatening the lives of their hostages the appellants succeeded, within about two hours, to make the Government of the Republic place at their disposal a Cyprus Airways plane at Larnaca Airport, to which they were driven in a police bus with eleven of their hostages, having released the rest. The plane with a crew of four took off soon after it was boarded by the appellants and their hostages, but it returned to Larnaca Airport at about 5 p.m. on February 19, 1978, having not been allowed to land anywhere else except at Djiboudi for refuelling. When the appellants boarded the plane at Larnaca Airport they were both armed: appellant 1 with a revolver and a hand-grenade and appellant 2 with a pistol and a handgrenade. After their return to Larnaca the two appellants released their hostages, surrendered to the police and handed over to them their weapons. One of such weapons was a pistol of Chinese origin and of Tokarev type which was handed over by appellant 2. [*135] The trial Court believed the evidence of the ballistics expert to the effect that two expended cartridges, a fired bullet and a bullet jacket, which were found at the scene of the crime by a Police Sergeant, and an expended cartridge and a bullet jacket that was found by him, were all fired through the barrel of the Tokarev pistol; and having pointed out that no other cartridges or projectilles were found there, it went on to state that it could not resist drawing the inference that all these cartridges and projectiles were parts of the three rounds of ammunition, fired by the Tokarev pistol, which wounded and caused the death of the victim. It also found that the Tokarev pistol was seen in the hands of appellant 2 in the Hilton after the murder and was subsequently, during the flight, seen sometimes in the possession of the one and sometimes in the possession of the other; and after commenting on the failure of the appellants to give on oath their explanation as to how and when the said pistol came into their possession, by stating that it was a factor related to the issue of their guilt, it went on to find that the only reasonable conclusion to be arrived at in the circumstances was that either appellant 1 or appellant 2 must have fired the three shots at the victim through the Tokarev pistol, to the exclusion of any other person. The trial Court, also, accepted as reliable evidence the testimony of three prosecution witnesses (Captain Melling, Constable Loizou and Special Constable Georghiou) who testified that appellant 1 made, respectively, extrajudicial confessions to them. The first two witnesses referred to the confessions for the first time during the trial, having made no mention of them at the preliminary inquiry whilst the third witness gave evidence of the confessions at the preliminary inquiry too. Finally the trial Court, having accepted all the evidence adduced by the Prosecution as true and reliable came to the conclusion that the murder of the victim was committed by the appellants in furtherance of a preconceived and well prepared common plan to which both were parties and that therefore, each of them could be charged with himself having committed the murder as a principal offender no matter who of the two actually pulled the trigger of the pistol used to commit the murder. In coming to this conclusion the trial Court took, inter alia, into consideration the movements and conduct of the two appellants from their arrival in Cyprus until the morning [*136] of the murder their presence at the scene armed so soon after the shots were heard and the victim was seen falling on the ground; the fact that the murder was committed with the Tokarev pistol which was seen in the hands of both appellants; the conduct of the appellants immediately after the victim was shot which showed that each knew the movements and actions of the other and each co-ordinated his role to that of the other in point of time and area of operation. The grounds on the basis of which the trial Court held that there existed premeditation were: (
2. a)That the appellants, while acting in concert, intentionally killed the victim in the execution of their preconceived and well prepared plan; (
3. b)that the wound that caused the death of the victim was on the head; (
4. c)that the accused assisted each other in the killing and aided each other in securing a safe escape; (
5. d)that the murder was committed by a leathal weapon that was brought to the Hilton hotel by one of the accused; and (
6. e)that the accused had a motive to kill the victim. After finding the appellants guilty of the offence of premeditated murder the Assize Court passed upon them the sentence of death and acting in pursuance of rule 5A (introduced by means of the Criminal Procedure Amendment Rules, 1964) of the Criminal Procedure Rules fixed the execution of the sentence of death on June 1, 1978. On appeal against conviction as well as against the sentence of death, in connection with the fixing, by the trial Court, of the date of its execution, counsel for the appellants contended:

(1)That the Special Assize Court which tried the appellants was, having regard to the way it was constituted, an "exceptional Court" within the meaning of Article 30 of the Constitution and as such was disqualified and/or incompetent to try the appellants for the offence with which they were indicted and convicted. Counsel's complaint in this connection was that the date of the sitting of the Assize Court and its composition were fixed for the purposes of this particular case only.

(2)That the Special Assize Court of Nicosia though admittedly possessing the power to pass a death sentence on appellants after finding them guilty of the offences contained in the information had no power or jurisdiction to fix the date of the execution of the death sentence of the appellants. This ground was also raised before the Court below at the conclusion of the trial by way of a motion in arrest of judgment under s. 79 of the Criminal Procedure Law, Cap. 155. Counsel for the appellants submitted in this connection that the execution of the death sentence, as opposed to the passing of the death sentence, was unconstitutional as conflicting with Articles 8 and 28 of the Constitution on the ground that for sixteen years nobody has been executed in Cyprus. Counsel further argued that Rule 5A of the Criminal Procedure Rules, which makes provision that an Assize Court in passing sentence of death, shall fix the date of execution is ultra vires Article 163.1 of the Constitution and section 176 of Cap. 155.

(3)That the trial Court wrongly admitted and acted upon the alleged extrajudicial confessions of appellant 1 to Captain Melling, Police Constable Loizou and Special Constable Georghiou.

(4)That the conviction of the appellants should be set aside because the trial Court has not dealt adequately with all the points which were raised by the defence at the trial.

(5)That the comment of the trial Court regarding the failure of the appellants to take the stand and give on oath their explanation as to when and how the Tokarev pistol came into their possession, and the conclusion of the trial Court that such failure was a matter related to the issue of their guilt was a glaring misdirection in law.

(6)That the trial Court erroneously accepted as reliable the evidence of the ballistics expert and drew the conclusion that the expended cartridges and the projectiles found near the . body of the victim were fired from the Tokarev pistol because (

1. a)the Police collected them from the scene of the crime before they were photographed at the. spot where they were lying and without marking the exact spots with chalk; and (
2. b)the expert did not take photo-micrographs of all the exhibits found at the scene.

(7)That the trial Court erroneously came to the conclusion that the facts, as found by it, were consistent only with the guilt of the appellants and inconsistent with any other rational conclusion. Counsel argued in this connection, that the said facts were, also, reasonably consistent with the appellants' innocence.

(8)That it has not been established that there was a common design of the appellants to murder the victim.

(9)That the trial Court erroneously came to the conclusion that if the murder was committed by the appellants or any of them it was committed with premeditation. Held, dismissing the appeals:

(1)That the Assize Court which tried and convicted the appellants was not an "exceptional Court" or an "ad hoc" Court contrary to the provisions of Article 30.1 of the Constitution. 2 (

1. a)That rule 5A of the Criminal Procedure Rules was not ultra vires Article 163.1 of the Constitution and that, accordingly, the Assize Court could have fixed the date of execution as they did. Per L. Loizou, Stavrinides and Malachtos J J. concurring: The appellants could not, in view of the provisions of s. 79 of Cap. 155 move the Court in arrest of judgment on the ground that "the Court had no right to fix the date of execution"; and that the rules of practice in force in England are not applicable in Cyprus. (
2. b)That the execution of the death sentence was not unconstitutional as being contrary to Articles 8 and 28 of the Constitution because even though nobody who has been sentenced to death during the last 16 years was executed, in all these previous cases there had been fixed dates of execution but later the death sentences were commuted to life imprisonment by the President of the Republic; and that the question of unequal treatment could perhaps be raised only if the President of the Republic refused to grant a pardon and to commute their sentence to life imprisonment.

(3)That the trial Court could not safely rely on the evidence of Captain Melling and Constable Loizou concerning the extrajudicial confessions of appellant l because these witnesses disclosed these confessions at the trial only and not at the preliminary inquiry (see Kouppis v. The Republic

(1977)11 J.S.C. 1860; R. v. Cooper [1969] 1 All E.R. 32 and Hadjisavva v. The Republic

(1976)2 J.S.C. 302); but that, at the same time, it could safely rely on the evidence of Special Constable Georghiou, regarding the confession of appellant 1, because this witness was found by the trial Court to be truthful and reliable and he had mentioned right from the preliminary inquiry what this appellant had stated to him.

(4)That all the points which have been raised by the defence at the trial have been duly dealt with by the trial Court. Per Triantafyllides P.: When the judgment of the trial Court is read as a whole (See Charitonos and Others v. The Republic

(1971)2 C.L.R. 40) there cannot be left any real doubt that all the points which were raised at the trial by counsel for the appellants were duly dealt with by the trial Court, to a certain extent expressly and to a certain extent by way of inescapable implication (see pp. 160-65 of the judgment post and R. v. Coughlan, 64 Cr. App. R. 11 at p. 19). Per L. Loizou, Stavrinides and Malachtos J J. concurring: It is apparent from the judgment that even though the Court may have not specifically mentioned each argument put forward by counsel this is not an indication, nor can this lead to the conclusion, in view of their findings and inferences drawn, that the Court did not have them in mind or they did not consider them.

(5)The fact that the Assize Court commented adversely on the failure of the appellants to give sworn evidence before it could not constitute, in the particular circumstances of this case, sufficient reason for allowing the appeals (proviso to s. 145

(1)(b) of Cap. 155 applied). Per Triantafyllides P.: Though it is rather unfortunate that the trial Court has not, in the present case, referred to the case of Anastassiades v. Republic

(1977)5 J.S.C. 516 where it was stressed (at p. 686)that ".......in the Vrakas case, supra, the failure of one of the appellants to give evidence, in his own defence, was treated as a factor related to the issue of his guilt in the light only of the particular circumstances of that case, without this Court intending to lay down then an inflexible rule of general application..........", I am not really satisfied that the trial Court approached this particular aspect of the present case while labouring under a misdirection regarding the Law governing the matter; moreover, it appears from the relevant part of its judgment (vide p. 154 post) that it was intended to be limited only to the failure of the appellants to give an explanation as to how the lethal weapon, the Tokarev pistol, came to be found in their possession after the murder. In any event, even if I were to accept as well-founded the complaint of counsel for the appellants, I would have no hesitation, in the light of the circumstances of the present case, to hold that, as stated in the proviso to section] 45

(1)(b) of Cap. 155 "no substantial miscarriage of justice has actually occurred" and, therefore, the appeals of the appellants cannot succeed as regards this particular point. Per L. Loizou, Stavrinides and Malachtos J J. concurring: The trial Court was in fact commenting on the failure of the accused to explain on oath how the pistol with which the victim was killed came to be in their possession and that the Court was not implying that the burden was on the appellants to prove their innocence. But in any case, having regard to the circumstances of this case I would have no hesitation in saying that no substantial miscarriage of justice has actually occurred and that the proviso to s. 145

(1)(b) of Cap. 155 could properly be applied (pp. 245-48 post). Per Hadjianastassiou J.: The very full argument which we have had in the present case has caused me to change the views which I held when Vrakas case was decided. I take the opportunity to state that I fully approve and endorse the statement of the law made by the President of the Supreme Court in the Anastassiades case (supra) to the effect that the failure of one of the appellants in the Vrakas case to give evidence, in his own defence, "was treated as a factor related to the issue of his guilt in the light only of the particulars circumstances of that case, without this Court intending to lay down then an inflexible rule of general application". It would indeed make a mockery of the law that in spite of the fact that the accused has a right not to go into the witness box to give evidence but elects to make an unsworn statement from the dock, that would be considered a factor related to his guilt. I have, therefore, reached the conclusion that the trial Court wrongly decided and misdirected themselves in following the principle decided in the Vrakas case. I have, however, reached the conclusion that this is not a case in which I would be prepared to set aside the judgment of the trial Court because no substantial miscarriage of justice has actually occurred (see proviso to s. 145

(1)(b) of Cap. 155).

(6)That the Assize Court rightly relied on the evidence of the ballistics expert in order to reach the conclusion that the pistol found in the possession of the appellants was the weapon with which the crime had been committed. Per Triantafyllides P.: It is true that the ballistics expert did not photograph all the projectiles and expended cartridges on the basis of which he has based his opinion that they were fired from the Tokarev pistol, but I cannot subscribe to the view that a ballistics expert has to produce at the trial photographs of all the objects in relation to which he testifies. If he satisfies the trial Court by stating in evidence his findings, the methods which he has used in order to arrive to such findings and the conclusions which he has reached on the basis thereof, the trial Court is entitled to rely on his evidence in order to form its own views concerning the significance of such findings; and that is what has happened in the present case (p. 153 of the judgment post). Per L. Loizou, Stavrinides and Malachtos J J. concurring: Bearing in mind the law relating to evidence by expert witnesses, whose function is to "furnish the Judge or jury with the necessary scientific criteria for deciding the accuracy of their conclusion so as to enable the Judge or Jury to form their own independent judgment by the application of those criteria to the facts proved in evidence" (see Davie v. Edinburgh Magistrates

(1953)S.C. 34) and, having regard to all the circumstances of this case, I am of the view that the trial Court had before it all necessary scientific criteria to enable it to form its independent judgment by applying such criteria to the facts proved in evidence and I would, therefore, dismiss this ground as unfounded. Per Hadjianastassiou J.: I am satisfied that the ballistics expert has discharged his duty . and has furnished the Court with the necessary scientific criteria. And I am sure that the trial Court, having before them the necessary scientific criteria have formed their own independent judgment by the application of those criteria to the facts proved in evidence and correctly approached and applied the scientific criteria for testing the accuracy of their conclusions and I am not prepared to say that they went wrong in any way or reached unsafe conclusions as to the facts (Davie v. Edinburgh Magistrates supra, followed).

(7)That the basic facts of the case established beyond any reasonable doubt that the appellants had killed the victim and excluded the possibility of the appellants being innocent. Per Triantafyllides P. : Having in mind the legal principles laid down McGreevy v. D.P.P. [1973] 1 W.L.R. 267 at p. 282, as well as the totality of the evidence adduced at the trial I cannot agree with counsel for the appellants that, when such evidence is looked at as a whole, it can be said to be, in any way, consistent with the innocence of the appellants; in my opinion, it is solely consistent with their having been directly involved in the killing of the victim as principal offenders, in the sense of sections 20 and 21 of Cap. 154, and inconsistent with their being accessories after the fact, in the sense of section 23 of Cap. 154. The behaviour of the appellants immediately after the commission of the murder, coupled with their joint possession of the Tokarev pistol, that is the weapon with which the murder was committed, establishes, without any rational possibility of existence of any doubt whatsoever, that it is the appellants who killed the victim (see p. 160 of the judgment post). Actually in the present case, the salient facts which were established by reliable evidence are such that they raise "violent presumptions of fact" against the appellants, that is to say presumptions so strong that the conclusion that they are guilty of the offence charged almost necessarily follows (see Archobold on Pleading, Evidence and Practice in Criminal Cases, 39th ed., pp. 657-658). Per L. Loizou, Stavrinides and Malachtos J J. concurring: There is no rule that where the prosecution's case is based on circumstantial evidence the Judge must as a matter of Law, not convict unless he is satisfied that the facts proved are not only consistent with the guilt of the accused, but also such as to be inconsistent with any other reasonable conclusion (see Mc-Greevy v. D.P.P. [1973] 1 All E.R. 503). Per Hadjianastassiou J.: Once the trial Judges have found the accused guilty beyond reasonable doubt, I think there is no room for complaint by counsel that they misdirected themselves, in reaching the conclusion that the facts as found by them were consistent only with the appellants' guilt, and inconsistent with any other rational conclusion (Dictum of Lord Morris of Borth-y-Gest in McGreevy v. D.P.P. [1973] 1 All E.R. 503 followed). In any way, once the trial Court found the appellants guilty beyond reasonable doubt they did not have to proceed further because R. v. Hodge

(1838)2 Lew. C.C. 227 is not laying down a new rule of law.

(8)That the prosecution established that there was a common design of the appellants to murder the victim; and that the appellants acted on the basis of a preconceived common plan which they executed on the day of the commission of the crime. Per Triantafyllides P.: (a) The trial Court has approached correctly the legal aspect of the issue relating to the existence of a common design when they stated "unless the prosecution satisfies the Court that the killing of the victim by one of the two accused was the result of an unlawful common design to which both accused were parties,both accused should be acquitted in view of the failure of the prosecution to prove which one of the two accused actually fired the fatal shots. But if it has been established that the death of the victim was part of the common design of the accused then it makes no difference who fired the shots and they are both answerable for the killing". (b)I find that the conclusion of the trial Court that "the conduct of each accused immediately after Sebai was killed leaves no doubt in our minds that they were at the time executing a well strategic plan and that each one knew the movements and actions of the other..." were fully warranted by; the evidence before it and that its finding that the two appellants were acting in furtherance of a common design when they became involved in the killing of the victim is free from any reasonable doubt, especially when it is borne in mind that each one of them was armed on that day with a handgrenade and that they had with them, and did use lethally, a pistol, that is the Tokarev pistol, which was identified, eventually, as the weapon with which the murder was committed (pp. 166-68 of the judgment post). (c)In the light of the particular circumstances of this case I have reached the conclusion that even if the murder of the victim was not the primary object of a common design of the appellants, but such design had as its primary purpose the taking of the hostages and the killing of the victim occurred in the process of doing so-(actually just as they had embarked on such a course of action, due to the victim having apparently acted in a way obstructing their purpose)-such killing was a matter included in the common design of the appellants to take hostages, because that design extended to the use of extreme force for the purpose of taking hostages (see, inter alia, R. v. Betty, 48 Cr. App. R. 6 at p. 10). (pp. 168-71 of the judgment post). Per L. Loizou, Stavrinides and Malachtos JJ. concurring: It clearly appears that in finding the appellants guilty of pie-meditated murder beyond reasonable doubt the Court had in mind all relevant considerations and it is evident that it was satisfied that the murder was committed by the appellants and that it could not have been committed by anyone else. The Court further specifically said that as there was no evidence as to who of the two fired the fatal shots both appellants would have to be acquitted unless it was proved that they were acting in concert and that the murder was committed by them in furtherance of a pre-conceived plan to which both were parties and the conclusion of the Court that this was so is not, in my view, having regard to the evidence, open to any criticism either with regard to the findings and the inferences drawn therefrom or with regard to their legal approach (pp. 254-273 post). Per Hadjianastassiou J.: Where two adventurers embark on a joint enterprise each is liable for acts done in pursuance of it and also for the unusual consequences of such acts, provided that they arise from the execution of the joint enterprise; but if one of the adventurers goes beyond what has been tacitly agreed as the scope of the enterprise, his co-adventurer is not liable for the consequences of that extraneous act. The fact that at the material time the appellants were armed with pistols and handgrenades, as well as from their actions and conduct, show clearly in my opinion that they were acting in concert by virtue of a common design and with a pre-arranged plan in pursuance of which the fatal shots were fired. And whether the one fired the fatal shot or the other it does not make any difference in my view, because once both had embarked on a joint enterprise of killing El Sebai, each is liable for the acts done in pursuance of that joint enterprise in killing the victim. 9.That as the appellants acted on the basis of a preconceived common plan which they executed on the day of the commission of the crime, when they killed the victim, they did so with premeditation. Per Triantafyllides P.: In the light of the principles of law applicable to the notion of premeditation (see my judgment in Anastassiades v. The Republic

(1977)5 J.S.C. 516 at pp. 688-715), I have reached the conclusion-though perhaps not without some initial difficulty- that the existence of premeditation has been established, with the certainty required in a criminal trial in the present case (pp. 171-76 of the judgment post). Per L. Loizou, Stavrinides and Malachtos J J. concurring: (After stating the legal principles governing premeditation-vide pp. 274-78). It may well be that not each one of the items enumerated by the Court as evidence relating to the issue of premeditation taken in isolation would be sufficient to establish premeditation but their cumulative effect warrants the conclusion reached by the trial Court that the murder was premeditated. The trial Court's findings and inferences based on credible evidence were that the murder of Sebai was committed in furtherance of a preconceived and well prepared common plan which could not have been prepared only a short period of time before it was put into effect, to which both appellants were parties and that the killing and the taking of the hostages were two phases of the same incident the object of the latter being to force their safe exit from Cyprus. In the absence of an iota of evidence as to any incident prior to the killing which would justify the Court to consider alternative issues such as provocation, self-defence or accident or generally that the killing was committed on the spur of the moment and as a result of circumstances that would render the act of killing unpremeditated the Court did not have a duty, nor indeed would such a course be correct to consider such possibilities because that would involve going outside the evidence and acting on mere speculation. Having regard to the state of the evidence and the findings and inferences drawn by the trial Court it seems to me that their, conclusion that the murder was premeditated was not only correct but unavoidable. Per Hadjianastassiou J.: Once the trial Court found that the killing took place by virtue of a common design and that both appellants were parties to a pre-arranged plan in pursuance of which the fatal shot was fired against the victim, and in spite of the fact that both appellants had ample time to reflect on their decision and desist from carrying out their intention in my view, the Court rightly reached the conclusion that both were guilty of premeditated murder.I would therefore affirm the judgment on the issue of premeditation and dismiss this ground of appeal. Also: Per Triantafyllides P.: I am of the view that the verdict of the trial Court that the appellants are guilty as charged is neither unreasonable nor against the weight of evidence adduced and that their guilt has been proved with that degree of certainty which is required in a criminal case; sitting as a member of this appellate Court I do not entertain any doubt even a lurking one as regards the correctness of the conviction of the appellants. Per L. Loizou, Stavrinides and Malachtos JJ. concurring: The appellants would only be entitled to be acquitted of the offence altogether if the Court had accepted the theory urged upon them by counsel that there were two groups, one involved in the killing and the other in the taking of the hostages, acting independently of each other and without any knowledge of each other's intentions and actions but, by coincidence, at the same time, and that the appellants were involved only in the taking of the hostages. But such a conclusion would be completely unwarranted by the evidence and, would, therefore, be unreasonable; and that there is a limit to which the long arm of coincidence could be stretched. Appeals dismissed. cases referred to: Vrakas and Another v. The Republic

(1973)2 C.L.R. 139; Anastassiades v. The Republic

(1977)5 J.S.C. 516 at pp. 680-687, 688-715, 721, 763-764; (to be reported in

(1977)2 C.L.R.); R. v. Sparrow [1973] 2 All E.R. 129; [1973] 1 W.L.R. 488; R. v. Gallagher [1974] 3 All E.R. 118 at p. 124; Kouppis v. The Republic

(1977)11 J.S.C. 1860 at pp. 1893-1895, 1951-1953, 1958, 1983-1985; (to be reported in

(1977)2 C.L.R.); R. v. Hodge, 168 E.R. 1136 at p. 1137; R. v. Mentesh, 14 C.L.R. 232; McGreevy v. Director of Public Prosecutions [1973] 1 W.L.R. 276 at p. 282; [1973] 1 All E.R. 503 at pp. 503, 507-508, 510 511; [*148] R. v. Badjan, 50 Cr. App. R. 141 at pp. 143-144; Mancini v. Director of Public Prosecutions, 28 Cr. App. R. 65 at pp. 72-73; [1942] A.C. 1 at pp. 7 and 12; Kunjo s/o Ramalan v. Public Prosecution [1978] 2 W.L.R. 130 at pp. 134-135; Charitonos and Others v. The Republic

(1971)2 C.L.R. 40; Kyprianou v. The Police

(1977)6 J.S.C. 906 (to be reported in

(1976)2 C.L.R.); R. v. Coughlan, 64 Cr. App. R. 11 at p. 19; Loftis v. The Republic, 1961 C.L.R. 108 at p. 118; R. v. Betty, 48 Cr. App. R. 6 at p. 10; R. v. Smith (unreported, quoted in 48 Cr. App. R. 6 at p. 10); R. v. Anderson and Morris, 50 Cr. App. R. 216 at pp. 221-224; R. v. Lovesey and Peterson, 53 Cr. App. R. 461 at pp. 464-465; R. v. Chakoli, 8 C.L.R. 93; , Pieris v. The Republic

(1963)1 C.L.R. 87; HjiSavva v. The Republic

(1976)2 J.S.C. 302 (to be reported in

(1976)2 C.L.R.); Furman v. State of Georgia, 33 L. Ed. 2d 346 at pp. 355, 360, 378-379,390,421; Sofroniou and Others v. The Municipality of Nicosia and Others

(1976)6 J.S.C. 874 at pp. 920-921; (to be reported in

(1976)3 C.L.R.); Vouniotis v. The Republic

(1975)2 C.L.R. 34 at pp. 60-61; De Freitas v. Benny [1975] 3 W.L.R. 388 at pp. 392, 393, 394; Jackson v. State of Georgia and Branch v. State of Texas, 33 L. Ed. 2d 346; Gregg v. State of Georgia, 49 L. Ed. 2d 859; Proffitt v. State of Florida, 49 L. Ed. 2d 913; Jurek v. State of Texas, 49 L. Ed. 2d 929; Woodson v. State of North Carolina, 49 L. Ed. 2d 944; Roberts v. State of Louisiana, 49 L. Ed. 2d 974; Mavrali v. The Republic

(1963)1 C.L.R. 4; pavlou v. The Republic 1964 C.L.R. 97; R. v. Shaban, 8 C.L.R. 82; [*149] Halil v. The Republic, 1961 C.L.R. 432; Aristidou v. The Republic

(1967)2 C.L.R. 43; X against the Federal Republic of Germany decided by the European Commission of Human Rights (Application No, 1216/61)); Level Brothers Ltd. v. Kneale andBagnall [1937] 2 K.B. 87; Poyser v. Minors, 7 Q.B.D. 329; The Republic and Loftis, 1 R.S.C.C. 30; R. v. Cooper [1969] 1 All E.R. 32 at p. 33; Waugh v. The King [1950] A.C. 203 at p. 211; R. v. Mutch [1973] 1 All E.R. 178 at p. 181; R. v. Pratt [1971] Crim. L.R. 234; R. v. Bathhurst [1968] 1 All E.R. 1175; R. v. Brigden [1973] Crim. L.R. 579; Davie v. Edinburgh Magistrates [1953] S.C, 34; R. v. Matheson [1958] 2 All E.R. 87; Walton v. The Queen, [1978] 1 All E.R. 542; R. v. Abbott, 39 Cr. App. R. 141 at p. 148; [1955] 2 All E.R. 899; King v. Reginam [1962] 1 All E.R. 816 at pp. 818-819, 820; Mohan and Another v. Reginam [1967] 2 All E.R. 58; Rex v. Pridmore [1913] L.T. 330 at p. 331; R. v. Smith (Wesley) [1963] 1 W.L.R. 1200 at p. 1205; Woolmington v. Director of Public Prosecutions [1935] A.C. 462 at p. 481; Stafford v. Director of Public Prosecutions [1973] 3 All E.R. 762 at p. 764; R. v. Beecham, 16 Cr. App. R. 26 at pp. 28 and 29; R. v. Browne, 29 Cr. App. R. 106 at pp. 112-113; Lascalles Fitzalbert Anderson and Emmanuel Morris, 50 Cr. App. R. 216; R. v. Richardson [1785] 1 Leach 387 at p. 388; R. v. Pattinson and Laws, 58 Cr. App. Rep. 417; Dervish and Another v. Rex, 18 C.L.R.

1. Appeals against conviction and sentence. Appeals against conviction and sentence by Samir Mohammed Khadar and Another who were convicted on the 4th April, 1978 at the Assize Court of Nicosia (Criminal Case No. 4357/78) on one count of the offence of premeditated murder, contrary to sections 203, 204, 20 and 21 of the Criminal Code, Cap. 154 (as amended by Law 3/62) and were sentenced to death by Demetriades, P.D.C. Boyadjis, S.D.J, and Nikitas, D.J. L. Clerides with A. Papacharalambous, for the appellants. M. Kyprianou, Senior Counsel of the Republic, with M. Florentzos and S. Matsas, for the respondent. Cur. adv. vult. The following judgments were read: Triantafyllides P.: The two appellants were found guilty on April 4, 1978, by an Assize Court in Nicosia, of the premeditated murder, under sections 203, 204, 20 and 21 of the Criminal Code, Cap. 154, as amended by the Criminal Code (Amendment) Law, 1962 (Law 3/62), of Yusef EI Sebai, late of Cairo, Egypt, and they were sentenced to death. They have both appealed against their conviction, as well as against the sentence of death, in connection with the fixing, by the trial Court, of the date of its execution. As it has been found by the trial Court the victim died, in the morning of February 18, 1978, of shock and haemorrhage due to fatal injuries caused by bullets. Three bullet wounds were inflicted on him immediately before his death while he was outside the book-shop in one of the main corridors at the ground floor of the Cyprus Hilton hotel in Nicosia. There is no direct evidence as to the identity of the person or persons who fired the fatal shots. The two appellants (who were accused 1 and accused 2, respectively, at the trial) appeared at the scene immediately after the shots were heard, as the victim was seen falling dead to the ground. Appellant 1 had arrived at Larnaca Airport on February 13, 1978, from Belgrade; he is approximately twenty-seven years old and of Jordanian nationality. Appellant 2 had arrived at the same airport on February 14, 1978, from Athens; he is approximately twenty-five years old and a national of Kuwait. The victim arrived from Cairo on February 16, 1978, and was staying at the Hilton hotel. The appellants are of different countries of origin, of different professions and they booked rooms at different hotels; but they were repeatedly seen being together, at almost all hours of day and night. Appellant 2 was staying at the Hilton hotel and appellant 1, who was staying at another hotel in Nicosia, spent the night of February 17 to 18 also at the Hilton hotel, in one of two communicating rooms used by appellant
2. After the murder appellant 2, who was armed with a pistol and a handgrenade, disarmed in the hotel lounge, which is very near to the scene of the murder, two policemen, who surrendered to him two revolvers. He then handed one of these revolvers to appellant 1, who was, also, armed with a handgrenade; appellant 1 entered the ballroom of the hotel, which is, too, very near to the scene of the murder and where there was taking place the "Afro-Asian Peoples Solidarity Organization" Conference, in which the victim was a participant; there appellant 1 ordered all the delegates, as well as two policemen, to leave the ballroom and herded them at gun point as hostages along the corridor, and past the dead body of the victim, to the cafeteria of the Hilton hotel, which is to be found further down the same corridor. Before leaving the ballroom appellant 1 fired one shot in the air, apparently in order to intimidate those present. To that same cafeteria appellant 2 brought other persons as hostages, having rounded them up at the lounge of the hotel. In the cafeteria, the two appellants were seen and heard talking together in Arabic; they, also, tied the hands of their hostages and forced one of the policemen, who was armed, to surrender his revolver. By threatening the lives of their hostages the appellants succeeded, within about two hours, to make the Government of the Republic place at their disposal a Cyprus Airways plane at Larnaca Airport, to which they were driven in a police bus with eleven of their hostages, having released the rest. The plane with a crew of four took off soon after it was [*152] boarded by the appellants and their hostages, but it returned to Larnaca Airport at about 5 p.m. on February 19, 1978, having not been allowed to land anywhere else except at Djibudi for refuelling. When the appellants boarded the plane at Larnaca Airport they were both armed; appellant 1 with a revolver and a hand-grenade and appellant 2 with a pistol and a handgrenade. After their return to Larnaca, and at about 6 p.m., the two appellants released their hostages and surrendered to the police, as a result of negotiations between them and the authorities of the Republic; and they handed over to the. police their weapons. One of such weapons is a pistol of Chinese origin and of Tokarev 7.62 m.m. type; it was handed over by appellant 2 and it was produced at the trial as exhibit
3. The murder of the victim took place at about 11.15 a.m. in the morning of February 18, 1978, and the first police officer, who arrived at the scene of the crime, at about 11.40 a.m., was Sergeant Mateas. As from that time the scene was cordoned off. He found in the corridor, and in the vicinity of a pool of blood at the place where the murder was committed, two expended cartridges, a fired bullet and a bullet jacket, which he delivered to the police ballistics expert, Inspector Christophides. The Inspector arrived at the scene of the crime at about 2.30 p.m., on the same day, and discovered in the book-shop next to where the victim had been killed another expended cartridge; on the following day, February 19, 1978, he searched once again the scene of the crime and discovered at the entrance of a nearby cloak-room another bullet jacket. According to his evidence the two expended cartridges, the fired bullet and the bullet jacket found by Sergeant Mateas, and the expended cartridge and bullet jacket found by him were all fired through the barrel of the Tokarev pistol. In its judgment the trial Court stated the following in relation to the testimony of Inspector Christophides:- "Inspector Christofides is, to our satisfaction, a properly qualified and adequately trained expert with enough practical experience. He has been accurate, succinct both in his findings and the opinions he expressed. In answering questions put to him by the Defence counsel, he has properly and adequately reasoned his opinions which he had given regarding the several exhibits which he had examined with the help of all necessary scientific equipment, having made all necessary tests and comparisons. He has persuaded us that he has reached at the correct conclusions and we exclude any possibility of his being mistaken. We find him both truthful and reliable and we feel safe to act upon his evidence." Counsel for the appellants has strenuously tried, during the hearing of this appeal, to persuade us that it was not safe for the trial Court to accept as reliable the evidence of Inspector Christophides. I cannot, however, accept his arguments, in this respect, as correct. It is true that Inspector Christophides did not photograph all the projectiles and expended cartridges on the basis of which he has based his opinion that they were fired from the Tokarev pistol (exhibit 34), but I cannot subscribe to the view that a ballistics expert has to produce at the trial photographs of all the objects in relation to which he testifies. If he satisfies the trial Court by stating in evidence his findings, the methods which he has used in order to arrive to such findings and the conclusions which he has reached on the basis thereof, the trial Court is entitled to rely on his evidence in order to form its own views concerning the significance of such findings; and this is what has happened in the present case. Nor do I accept as well-founded the argument that the projectiles and expended cartridges were removed from, and replaced at, the scene of the crime, by the police, in such a manner as to give rise to the possibility that Inspector Christophides may have based his scientific investigation on erroneous information; I am of the view that the real evidence concerned was handled in such a way that it was possible for Inspector Christophides to derive from it completely accurate scientific information enabling him to testify on the basis of it at the trial in a manner entitling the trial Court to rely on his evidence. The trial Court reached the conclusion that the presence at the scene of the murder of the aforesaid projectiles and expended cartridges was consistent with the firing of three shots with the Tokarev pistol; and having pointed out that no other cartridges or projectiles were found there, it went on to state that it could not resist drawing the inference that all these cartridges and projectiles were parts of the three rounds of ammunition, fired by the Tokarev pistol, which wounded and caused the death of the victim. The trial Court then went on to say the following in its judgment:- "The lethal weapon (exhibit No. 34) was seen in the hands of accused No. 2 inside the Hilton after the killing and before the hostages and the two accused left in the police bus. During the flight it was being carried at times by both accused and it was ultimately surrendered to the police by accused No.
4. Neither accused No. 1 nor accused No. 2 gave any explanation as to when and how this gun came into their possession. We have no explanation at all from them which might tend to shake the otherwise irresistible inference which one has to draw from the fact that the lethal weapon was in their possession in the Hilton hotel so shortly after the fatal shots were fired from it. We believe that we are entitled to comment upon the failure of both accused to take the stand and give on oath their explanation on this matter, if they had one. In the circumstances of this case, the failure of the accused to give evidence in their own defence is a factor related to the issue of their guilt. We cite in this respect the authorities of R. v. Sparrows, [1973] 1 W.L.R. 488, and Pantelis Vrakas and Another v. The Republic,

(1973)2 C.L.R. 139. The only reasonable conclusion to be arrived at in the circumstances is that either accused No. 1 or accused No. 2 must have fired the three shots at the victim through the pistol (exhibit No. 34) which they possessed, to the exclusion of any other person." Counsel for the appellants has submitted that the above passage betrays a misdirection in law by the trial Court, in that it mistook what was said in the Vrakas case, supra, as part of the reasoning of the judgment on appeal in respect of the special facts of that case, as amounting to a rule of law of universal application. In Anastassiades v. The Republic,

(1977)5 J.S.C. 516, this Court had occasion (at pp. 680-686) to deal with the situation arising when an accused person in a criminal trial does not give evidence on oath, and it stressed (at p. 686) that "..in the Vrakas case, supra, the failure of one of the appellants to give evidence, in his own defence, was treated as a factor related to the issue of his guilt in the light only of the particular circumstances of that case, without this Court intending to lay down then an inflexible rule of general application ...." It is rather unfortunate that the trial Court has not, in the present instance, referred to the Anastassiades case, supra, in relation to the failure of the appellants to give evidence on oath; but it has referred to R. v. Sparrow, [1973] 2 All E.R. 129, which was decided in 1973 before the Vrakas case and which was found to have laid down correctly the relevant law when it was considered after the Vrakas case in R. v. Gallagher, [1974] 3 All E.R. 118, 124. I am not, therefore, really satisfied that the trial Court approached this particular aspect of the pressent case while labouring under a misdirection regarding the law governing the matter; moreover, it appears from the above quoted relevant part of its judgment that it was intended to be limited only to the failure of the appellants to give an explanation as to how the lethal weapon, the Tokarev pistol, came to be found in their possession after the murder. In any event, even if I were to accept as well-founded the complaint of counsel for the appellants, I would have no hesitation, in the light of the circumstances of the present case, to hold that, as stated in the proviso to section 145

(1)(b) of the Criminal Procedure Law, Cap. 155 "no substantial miscarriage of justice has actually occurred" and, therefore, the appeals of the appellants cannot succeed as regards this particular point. The next aspect of the present case with which I will deal now is that which relates to what have been described as the three extra judicial confessions of appellant 1 which he made, respectively, to three prosecution witnesses, namely Captain Melling, who was one of the two Cyprus Airways pilots who flew the plane by means of which the appellants and their hostages made an abortive attempt to go to another country, Police Constable Loizou, who testified as to what appellant 1 said in the cafeteria of the Hilton hotel after the appellants had taken their hostages there, and Special Constable Georghiou, who, too, has given evidence as regards what was stated by appellant 1 in the cafeteria. The trial Court accepted as reliable evidence the testimony of all the three aforementioned prosecution witnesses in relation to the said extrajudicial confessions of appellant 1. Captain Melling testified that just before the departure of the plane from Larnaca Airport he had a conversation with appellant 1, who spoke some English, and who told him, apparently referring to the victim of the murder, "I killed him because he is a bad man and a spy and a traitor to the Arab cause"; appellant said further that "both", that is himself and appellant 2, had come to Cyprus in order to kill the victim. It has transpired, however, during the cross-examination of Captain Melling, that he did not mention at the preliminary inquiry of this case this conversation with appellant 1, because he was not asked about it. Police Constable Loizou stated, while under re-examination by counsel for the prosecution at the trial, that appellant 1 said, while they were all of them together in the cafeteria of the Hilton hotel with the hostages, "we are Palestinian. Dont afray"-(be afraid)-"anything. We are friends of yours. We kill this man because he was friend of Israel and he write different articles in your gazette". This witness, on being questioned further by counsel for the appellants, admitted that he did not mention this statement of appellant 1 at the preliminary inquiry because, as he said, he was not asked about it; and he went on to say that he did not mention anything in relation to this statement of appellant 1 during his examination-in-chief at the trial because he was, again, not asked about it. Though the trial Court treated both Captain Melling and Constable Loizou as truthful witnesses, I do not think that this was a case in which the trial Court could rely safely and with the certainty required in a criminal trial (see, inter alia, Kouppis v. The Republic,

(1977)11 J.S.C. 1860) on the belated disclosures of the said witnesses at the trial only, and not at the preliminary inquiry, concerning the extrajudicial confessions to them of appellant

1. I am of the view that the better, and safer course, in the particular circumstances, was for the trial Court not to have acted on such confessions, even though there was no doubt about the credibility of the two prosecution witnesses in question and even if it was not their fault that they testified so belatedly about statements made by appellant 1 to them or in their presence. The third extrajudicial confession, which was made to Special Constable Georghiou, was again a statement made by appellants 1 whilst being in the cafeteria with the hostages; according to this witness appellant 1 said "We are Palestenians, we come especially for that man, we killed that man because he was friend with the Israelis, and he write some articles in his newspaper against Palestenians". On being cross-examined the witness admitted that at the preliminary inquiry he had said that appellant 1 had stated "we come to kill him" and that what he testified at the trial to the effect that appellant 1 had stated "we killed him" was incorrect. The trial Court found that this witness was truthful and reliable, and as he had mentioned right from the preliminary inquiry what appellant 1 had stated in the cafeteria I see no reason for agreeing with counsel for the appellants that the trial Court was not entitled to rely safely on his evidence in this connection. As regards all the aforementioned three extrajudicial confessions of appellant 1 counsel for the respondent has, acting, in my view, with the earnest desire to be as fair as possible to the appellants, declared, during the hearing of this case on appeal, that they are not to be treated as evidence against appellant 2 as regards any issue in this case. Though it might be arguable in law that they could be treated as admissible evidence against appellant 2 in case of the establishment, by the other evidence adduced, of the existence of a common design between the two appellants to murder the victim, I am not prepared to carry myself the case, as against [*158] appellant 2, any further than to the extent to which counsel for the respondent has chosen to do, in an effort to be absolutely fair to him; moreover, I am not disposed to do so as no legal argument was advanced during the hearing on appeal that the extrajudicial confessions in question of appellant 1 were evidence against appellant 2, so that an opportunity could have been given to counsel for the appellants to answer such argument. It has been submitted by counsel for the appellants that, notwithstanding the evidence adduced at the trial against his clients-(and I have referred already to the salient parts of such evidence)-the trial Court erroneously came to the conclusion that the facts, as found by it, were consistent only with the guilt of the appellants and inconsistent with any other rational conclusion; he has argued, in this connection, that the said facts were, also, reasonably consistent with the appellants' innocence. Counsel for the appellants has referred, inter alia, to what came to be known as the "rule" in R. v. Hodge, 168 E.R. 1136, which has been adopted with approval in Cyprus in R. v. Mentesh, 14 C.L.R. 232, and explained by the House of Lords in England in McGreevy v. Director of Public Prosecutions, [1973] 1 W.L.R.
2. It was, indeed, laid down by Alderson B. in the Hodge's case, supra (at p. 1137), that, where a criminal charge depends on circumstantial evidence, before the jury could find the prisoner guilty they must be satisfied "not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person." Lord Morris of Borth-y-Gest, in delivering his judgment in the McGreevy case, supra (at p. 282), referred to the above dictum of Alderson B. and went on to say the following:- "He also pointed out to the jury, to quote from the report, the proneness of the human mind to look for (and often slightly to distort) the facts in order to establish a proposition while forgetting that a single circumstance which is inconsistent with such a conclusion is of more importance than all the rest inasmuch as it destroyed the hypothesis of guilt. In the report of the case it was said that the evidence was all circumstantial and contained no one fact which taken alone would lead to a presumption of guilt. No one could doubt that the wise words used by the learned Judge were helpful and admirable and as such were worthy of being recorded. But there is no indication that the learned Judge was newly laying down a requirement for a summing up in cases where the evidence is circumstantial nor that he was himself employing words so as to comply with an already existing legal requirement. The painstaking research of Mr. Appleton showed that in some countries in the Commonwealth both learned Judges and also legal writers have made reference to the 'rule' in Hodge's case. I do not propose to refer to all the citations which Mr. Appleton made. The singular fact remains that here in the home of the common law Hodge's case has not been given very special prominence: references to it are scant and do not suggest that it enshrines guidance of such compulsive power as to amount to a rule of law which if not faithfully followed will stamp a summing up as defective. I think that this is consistent with the view that Hodge's case was reported not because it laid down a new rule of law but because it was thought to furnish a helpful example of one way in which a jury could be directed in a case where the evidence was circumstantial." The above view was adopted by this Court in Vrakas, supra, p. 169 (and, see, also, Anastassiades, supra, pp. 686-687). Having in mind the above legal principles, as well as the totality of the evidence adduced at the trial and now on record before this appellate Court, I cannot agree with counsel for the appellants that, when such evidence is looked at as a whole, it can be said to be, in any way, consistent with the innocence of the appellants; in my opinion, it is solely consistent with their having been directly involved in the killing of the victim as principal offenders, in the sense of sections 20 and 21 of Cap. 154, and inconsistent with their being accessories after the fact, in the sense of section 23 of Cap.
3. I do not think that it is necessary, in this connection, to analyse at length the main features of the relevant evidence; it suffices to say that the behaviour of the appellants immediately after the commission of the murder, coupled with their joint possession of the Tokarev pistol (exhibit 34), that is the weapon with which the murder was committed, establishes, without any rational possibility of the existence of any doubt whatsoever, that it is the appellants who killed the victim; and the supposition that another person or other persons may have been also involved, in any way, in killing the victim-and one can only speculate about such a possibility because there is no evidence to substantiate it-cannot be treated, in the circumstances of this case, as precluding the appellants from being themselves principal offenders involved in the commission of the murder. Furthermore, there is not any evidence which could lead to the conclusion that it is possible that the murder was committed by anybody else and that the appellants embarked upon the operation of taking hostages in order to enable the real culprit to escape, without themselves being implicated in such murder. Actually, in the present case, the salient facts which were established by reliable evidence are such that they raise "violent presumptions of fact" against the appellants, that is to say presumptions so strong that the conclusion that they are guilty of the offence charged almost necessarily follows (regarding "violent presumptions of fact" see Archbold on Pleading, Evidence and Practice in Criminal Cases, 39th ed., pp. 657-658, paras. 1143, 1144). I shall deal, next, at this stage of the judgment, with the complaint of counsel for the appellants that three points raised by the, defence at the trial were not adequately dealt with by the trial Court. The importance of paying due regard to a cardinal line of defence has been stressed in, inter alia, R. v. Badjan, 50 Cr. App. R. 141, where Edmund Davies J. said (at pp. 143-144):- "In the course of his direction to the jury, the learned Commissioner said nothing about the defence of self-defence which the appellant had raised. It was a defence, which, in the light of the evidence, might have been regarded as of tenuous worth, but it was a defence which the appellant was entitled to have left to the jury for their assessment. Unhappily and unfortunately, the learned Commissioner did not advert to that defence. There are other features of this case which need not detain this Court. Mr. Webster, who appears here for the Crown, confesses 5 to the difficulty of maintaining that no reference to the plea of self-defence was in the circumstances called for, but nevertheless invites this Court to say that, having regard to all the evidence and the nature of the statement made by the appellant, this is a proper case in which to apply the proviso to section 4

(1)of the Criminal Appeal Act 1907. This Court is unable to accede to that invitation. Where a cardinal line of defence is placed before the jury and that finds no reflection at any stage in the summing-up, it is in general impossible, in the view of this Court, to say that the proviso can properly be applied so as to say that the conviction is secure in those circumstances. Whether that be right as a general proposition or not, certainly, in the circumstances of this case, the Court finds itself quite incapable of saying that this conviction ought to stand notwithstanding the misdirection by omission already mentioned. It has, accordingly, no alternative but to allow this appeal against conviction.", It is, also, useful to refer, in this respect, to the earlier case of Mancini v. Director of Public Prosecutions, 28 Cr. App. R. 65, where Viscount Simon L.C. said the following (at pp. 72-73) :- "Although the appellant's case at the trial was in substance that he had been compelled to use his weapon in necessary self-defence-a defence which, if it had been accepted by the jury, would have resulted in his complete acquittal-it was undoubtedly the duty of the Judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter. The fact that a defending counsel does not stress an alternative case before the jury (which he may well feel it difficult to do without prejudicing the" main defence) did not relieve the Judge from the duty of directing the jury to consider the alternative, if there was material before the jury which would justify a direction that they should consider it. Thus, in Hopper (11 Cr. App. R. 136; [1915] 2 K.B. 431), at a trial for murder the prisoner's counsel relied substantially on the defence that the killing was accidental. But Lord Reading, C.J., in delivering the judgment of the Court of Criminal Appeal, said ([1915] 2 K.B., at p. 435): 'We do not assent to the suggestion that as the defence throughout the trial was accident, the Judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the Judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence-we say no more than that-upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand.' To avoid all possible misunderstanding, I would add that this is far from saying that in every trial for. murder, where the accused pleads Not Guilty, the Judge must include in his summing-up to the jury observations on the subject of manslaughter. The possibility of a verdict of manslaughter instead of murder only arises when the evidence given before the jury is such as might satisfy them as the Judges of fact that the elements were present which would reduce the crime to manslaughter, or at any rate might induce a reasonable doubt whether this was, or was not, the case. Murder by secret poisoning, for example, does not give room for the defence that, owing to provocation received, the administration of the poison should be treated as manslaughter. On the other hand, if the defence to a charge of murder by poisoning were that the accused never administered the poison" at all, the Judge might very well be obliged to direct the jury on the alternative view that the administration was accidental, if the facts proved reasonably admitted this as a possible interpretation, even though the defence had not relied on the alternative." Furthermore, in the very recent case of Kunjo s/o Ramalan v. Public Prosecutor, [1978] 2 W.L.R. 130, which was decided on appeal to the Privy Council in England from the Court of Criminal Appeal in Singapore, Lord Scarman said (at pp. 134-135):- "Where trial has been by jury and the burden of proof is upon the prosecution to negative the defence, it is settled law that the Judge must put to the jury all matters which upon the evidence could entitle the jury to return a lesser verdict than murder. And, if the Judge fails to do so, the Board will intervene, even if the matter was not raised below. For otherwise there would be the risk of a failure of justice. In Kwaku Mensah v. The King [1946] A.C. 83, Lord Goddard, giving the reasons of the Board for allowing the appeal, said, at p. 94: The principles on which this Board acts in criminal cases are well known and need no repetition, but when there has been an omission to place before the jury for their consideration a matter of such grave importance that they were never led to consider whether in this respect the prosecution had discharged the onus which lay on them of proving murder as distinct from manslaughter, their Lordships think that they can properly entertain the appeal. They would add that it must be seldom that they consider a matter which was not only mentioned in the Courts below, but was not included in the reasons given by the appellant in his case.' Although different considerations arise where, as here, the burden of proving the defence or exception is upon the defendant and trial is by Judge (or Judges) alone, Mr. French for the Public Prosecutor has not contended either that section 105 of the Evidence Code, or the mere fact of trial being by Judge alone, precludes the Board from considering a defence not raised below. But he does raise the point that it does not follow from a Judge's silence as to a possible defence that he has ignored it. He may have thought the matter too plain for argument-more especially, if it has not been raised by the defence. Moreover it would not, in our judgment, assist the administration of criminal justice if there were to be cast upon the High Court the duty of reciting in judgment only to reject every defence that might have been raised but was not. Nevertheless there will be cases in which justice requires the Board to consider matters not mentioned in the Court below. It is to be noted that in India, where there is also no trial by jury and the burden of proving the exception of 'sudden fight' is upon the defendant, the Supreme Court of India has considered and given effect to the exception, substituting a verdict of culpable homicide for one of murder, although the exception had not been relied on at trial: see Chamru Budhwa v. State of Madhya Pradesh, A.I.R.

(41)1954 S.C. 652. In our judgment a defence based upon an exception which the defendant has to prove may be raised for the first time before the Board, if the Board considers that otherwise there would be a real risk of failure of justice. The test must be whether there is sufficient evidence upon which a reasonable tribunal could find the defence made out. If there be such evidence, the Court of trial should have expressly dealt with it in judgment and the Judicial Committee will deal with it on appeal, even though it has not been raised below." The aforementioned three points, which according to the relevant submission. of counsel for the appellants were not adequately dealt with by the trial Court, are, first, that the conduct of the appellants on the day of the murder was equally consistent with both guilt and innocence; secondly, that the appellants could not be the murderers because if they had wanted to kill the victim they had had other opportunities of doing so in circumstances enabling them to escape detection or arrest, and, thirdly, that it could not be said with certainty that the projectiles, which were recovered from the scene of the crime, were those which had killed the victim by passing through his body, because they had not been examined in order to ascertain whether there was human blood or tissues on them. It has been, repeatedly, pointed out that the judgment of a trial Court must be read as a whole (see, inter alia, Charitonos and Others v. The Republic,

(1971)2 C.L.R. 40 and Kyprianou v. The Police,

(1977)6 J.S.C. 906). Also, it appears pertinent to quote, by way of useful analogy, the following passage from the judgment of Shaw L.J. in R. v. Coughlan, 64 Cr. App. R. 11 (at p. 19):- "The due administration of justice does not demand that a summing-up should follow any particular form. In its entirety this summing-up conformed to all the requirements of justice; it was balanced, it was fair and it was clear." When the judgment of the trial Court in the present case is read as a whole there cannot be left any real doubt that all the aforementioned three points which were raised at the trial by counsel for the appellants were duly dealt with by the trial Court, to a certain extent expressly and to a certain extent by way of inescapable implication. It might, in any event, be observed, in relation to the said three points, that the fact that, possibly, the appellants had had other opportunities of killing the victim cannot avert the conclusion that it was they who killed him once that the evidence adduced points irresistibly to such a conclusion; likewise, the fact that the projectiles, which were recovered from the scene of the crime and which, according to the evidence of the ballistics expert, were fired with the Tokarev pistol-which was found, subsequently, in the possession of the appellants-were not examined in order to ascertain if there was human blood or tissues on them cannot prevent the drawing of the inevitable conclusion, on the strength of other relevant and cogent evidence, that it was actually those bullets which killed the victim. Lastly, as regards the contention that the conduct of the appellants on that day was equally consistent with both guilt and innocence, I have, already, stated in this judgment that such conduct could only be treated as being solely consistent with their guilt and I need not elaborate any further in this respect. 1 shall deal, next, with one of the basic submissions of counsel for the appellants in this case, namely that it has not been established that there was a common design of the appellants to murder the victim, that the trial Court erroneously found that such a common design existed and that, in the absence of a common design to kill the victim, both appellants should have been acquitted, in view of the failure of the prosecution to prove at the trial which one of the two appellants actually fired the fatal shots, assuming that one of them has done so. It is, indeed, correct that, as stated in the judgment of the trial Court, it has not been proved who was the appellant who fired the fatal shots at the victim and, also, there was no direct evidence of the existence of a common design of the appellants to murder him. In this respect, the trial Court has stated the following in its judgment:- "Unless the Prosecution satisfies the Court that the killing of the victim by one of the two accused was the result of an unlawful common design to which both accused were parties, both accused should be acquitted in view of the failure of the Prosecution to prove which one of the two accused actually fired the fatal shots. But if it has been established that the death of the victim was part of the common design of the accused, then it makes no difference who fired the shots and they are both answerable for the killing. We cite in this respect the cases of R. v. Salmon, [1880] 6 Q.B.D. 79, C.C.R., and R. v. Pridmore, [1913] 29 T.L.R. 330, (8 Cr. App. R. 198), Vrakas and another v. The Republic,

(1973)2 C.L.R. p. 139, Archbold 38th Ed. Paragraph 4128, Rex v. Reginam [1962] 1 A.E.R. p. 816, Rex v. Richardson

(1785)1 Leach

1. Gour: The Indian Penal Code Vol. I 9th Ed. Paragraph 21 p.
2. The legal principles governing criminal liability by confederators participating in the execution of an unlawful common plan are in Cyprus the same as those prevailing in England: R. v. Dervish, 18 C.L.R.
3. Very rarely direct evidence is available regarding the nature and extent of the common design or purpose of co-adventurers. In the majority of cases, including the present one, common design is a matter of inference by the Court from the acts of the accused persons and the facts as proved before the Court: R. v. Pridmore (supra) and Vrakas and Another v. The Republic (supra)." From the above passage of the judgment of the trial Court it appears that it has approached correctly the legal aspect of the issue relating to the existence of a common design; and I have not considered it necessary to refer myself at length to the case-law cited in the said passage. Later on in its judgment the trial Court proceeded to state, inter alia, the following:- "The conduct of each accused immediately after Sebai was killed leaves no doubt in our minds that they were at the time executing a well studied strategic plan. Each knew the movements and actions of the other and each co-ordinated his role to that of the other in point of time and area of operation. The pistol (exhibit No. 34) was involved both in the incident of killing Sebai and the incident of taking and removing the hostages from Cyprus. Furthermore, the aforesaid killing and taking of the hostages had such a sequence in point of time that we feel bound to infer that they were nothing more than two phases of the same incident. We exclude any probability of the two incidents being separate and distinct and to have been committed out of mere coincidence in the same hotel, at the same time, by two different groups of persons acting independently and without notice or knowledge of each other's acts. We have no doubt that the only reason for which the accused admittedly took the hostages was to force their safe exit from Cyprus and thus escape the consequences for their having unlawfully killed Sebai. ......................... It is evident from all the above that the murder of Sebai was committed in furtherance of a pre-conceived and well prepared common plan, to which both accused were parties. It matters not, therefore, which one of the two accused actually pulled the trigger of the pistol (exhibit No. 34). Having in mind this finding of ours and the Law, as we have very briefly above expounded, we find that each accused could be charged with himself having committed the killing as principal offender." I find that the above conclusions of the trial Court were fully warranted by the evidence before it and that its finding that the two appellants were acting in furtherance of a common design when they became involved in the killing of the victim is free from any reasonable doubt, especially when it is borne in mind that each one of them was armed on that day with a handgrenade and that they had with them, and did use lethally, a pistol, that is the Tokarev pistol, which was identified, eventually, as the weapon with which the murder was committed; it would, indeed, be most extraordinary if it was a mere coincidence that both appellants were, on that day, acting independently of each other, and each one acting separately happened to be armed, in the Cyprus Hilton hotel, at the same time and place, with a handgrenade. In view, however, of the fact that each one of the appellants was armed with a handgrenade but they had, quite probably, only one firearm available for use by either, or both, of them, I have also examined, in fairness to them, the alternative possibility that the killing of the victim was not their primary object, but that it was committed in the course of taking hostages, assuming that this latter venture was their primary purpose; and, on this basis, I have had to consider, in view of the fact that there is no evidence as to who out of the two appellants has fired the fatal shots, whether, in the circumstances of this particular case, both could have been convicted of the offence of murdering the victim; in other words, whether in such a situation as the one which I have just assumed to have existed the killing of the victim was related to their common design to take hostages and did "not totally or substantially vary from it" (see per Josephides J. in Loftis v. The Republic, 1961 C.L.R. 108, 118). In R. v. Betty, 48 Cr. App. R. 6, Lord Parker C.J. quoted with approval (at p. 10) the dictum of Slade J. in R. v. Smith (an unreported case) to the effect that ".... anything which is within the ambit of the concerted arrangement is the reponsibility of each party who chooses to enter into the criminal purpose." On the other hand, in R, v. Anderson and Morris, 50 Cr. App. R. 216, Lord Parker C.J. stated the following (at p. 223):- "It seems to this Court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today." In R. v. Lovesey and Peterson, 53 Cr. App. R. 461, the facts, as summarized in the headnote, were as follows:- "The appellants were convicted of robbery with violence and murder. The case for the prosecution was that they were among a number of persons who attacked and robbed a jeweller and in the course of the attack had inflicted injuries on him, as the result of which he died. There was no direct evidence of how many men had been involved in the attack or of their individual roles. The appellants' defence was a denial of all knowledge of the attack." Widgery L.J. stated in his judgment (at pp. 464-465) the following:- "As neither appellant's part in the affair could be identified, neither could be convicted of an offence which went beyond the common design to which he was a party. There was clearly a common design to rob, but that would not suffice to convict of murder unless the common design included the use of whatever force was necessary to achieve the robbers' object (or to permit escape without fear of subsequent identification), even if this involved killing, or the infliction of grievous bodily harm on the victim. If the scope of the common design had been left to the jury in this way, they might still have concluded that it extended to the use of extreme force. It is clear that the plan envisaged that the victim's resistance should be rapidly overcome. The attack bears the hallmark of desperate men who knew that they had to act quickly, and the jury may have thought it utterly unreal that such men would make a pact to treat the victim gently however much he struggled and however long it might take to subdue him. The jury had also had the advantage of seeing the appellants in the witness-box and may have formed their own views as to whether the appellants would have scruples of this character. There must, in our view, be many cases of this kind where the jury feel driven to the conclusion that the raiders' common design extended to everything which in fact occurred in the course of the raid, but the question must be left to the jury because it is a matter for them to decide, and this is so notwithstanding that the point was not raised by the defence. Mr. Buzzard has invited us to consider the substitution on count 2 of a verdict of manslaughter under section 3 of the Criminal Appeal Act
4. It is clear that a common design to use unlawful violence, short of the infliction of grievous bodily harm, renders all the co-adventurers guilty of manslaughter if the victim's death is an unexpected consequence of the carrying-out of that design. Where, however, the victim's death is not a product of the common design but is attributable to one of the co-adventurers going beyond the scope of that design, by using violence which is intended to cause grievous bodily harm, the others are not responsible for that unauthorised act (Anderson and Morris [1966] 50 Cr. App. R. 216; [1966] 2 Q.B. 110). In the present case the degree of violence used against the victim showed a clear intention to inflict grievous bodily harm, and if this was within the common design the proper verdict against all concerned was one of murder. We cannot say that the jury must have reached this conclusion and, accordingly, feel compelled to quash both convictions for murder. Having reached this point we are unable to substitute verdicts of manslaughter since, if a common design to inflict grievous bodily harm is excluded, the jury might well have concluded that the killing was the unauthorised act of one individual for which the co-adventurers were not responsible at all." In the light of the legal principles set out above and of the particular circumstances of the present case I have reached the conclusion that if the murder of the victim was not the primary object of a common design of the appellants, but such design had as its primary purpose the taking of hostages and the killing of the victim occurred in the process of doing so-(actually just as they had embarked on such a course of action, due to the victim having apparently acted in a way obstructing their purpose)-such killing was a matter included in the common design of the appellants to take hostages, because that [*171]design extended to the use of extreme force for the purpose of taking hostages. This is amply clear from the fact that both appellants were carrying handgrenades, from which they had removed the safety pins, and that appellant 1, while trying to round up as hostages a number of participants in the Afro-Asian Peoples Solidarity Organization Conference fired a warning shot in the conference room in order to subdue any resistance. The next issue that has to be considered is whether the appellants, who as can be clearly derived from what has already been stated in this judgment, were, in my opinion, rightly convicted of the murder of the victim, did commit such murder with premeditation: Counsel for the appellants has submitted that the finding of the trial Court that the appellants caused the death of the victim with premeditation is erroneous. The trial Court has, in this respect, stated the following in its judgment:- "The evidence on the issue of premeditation is, in a nutshell, the following:-

(1)The two accused acting in concert intentionally killed the victim in the execution of their preconceived and well prepared plan.

(2)The wound that caused the death of the victim was on the head.

(3)The accused assisted each other in the killing and aided each other in securing a safe escape.

(4)The murder was committed by a lethal weapon that was brought to the Hilton hotel by one of the accused. And

(5)The accused had a motive to kill the victim. The above evidence, which has been proved by the Prosecution beyond any reasonable doubt, leaves no room for doubt in our minds that the two accused killed El Sebai in the execution of their well prepared and preconceived plan, although they had ample time to reflect on their decision and desist from carrying out their intentions and though the presence of uniformed armed policemen at the Hilton should have put them off and made them retract." The policemen, to whom reference is made in the above passage, are those who were posted, at the time, at the Hilton hotel for security purposes in relation to the then in progress aforementioned Conference. I do not propose to dwell at length on the law relating to the notion of premeditated murder; I have done so in my judgment in the Anastassiades case, supra (see pp. 688-715); and this Court has had occasion to revert to such notion in the Kouppis case, supra; in the latter case I observed (at pp. 1893-1984) that "... I am inclined to the view that when a group of heavily armed persons, such as the appellant and his two companions in the present instance, are roaming the streets of a town, in anticipation of a possible encounter with political opponents of theirs, and if in the course of such an encounter they use their arms with the result that there is caused deprivation of life, then, as a matter of general principle, there do exist elements in the light of which, depending on the special circumstances of each individual case, the conclusion might be reached that there existed premeditation to commit murder; one might describe such premeditation as 'conditional premeditation (see, in this respect, inter alia, R. v. Chakoli, 8 C.L.R. 93, Pieris v. The Republic,

(1963)1 C.L.R. 87)." In the light of the principles of law applicable to the notion of premeditation, and of the evidence on record in this case, I have reached the conclusion-though perhaps not without some initial difficulty-that the existence of premeditation has been established, with the certainty required in a criminal trial, in the present case; and my reasons for such conclusion are as follows:- My main problem, in this respect, has been the fact that there is no direct evidence at all as regards the exact circumstances of the commission of the murder of the victim by the two appellants; and as premeditation is a distinct and separate element of the offence of premeditated murder, and should not be identified with the notion of malice aforethought in English criminal law, it is always, in my opinion, very important to know exactly how a murder came to be committed before one can reach definite conclusions, beyond doubt, concerning the establishment of the existence of premeditation. On the other hand, I am not prepared to go so far as to say that it is always essential to have such direct evidence, because there may be instances where the existence of premeditation can be irresistibly and infallibly inferred from circumstantial evidence only. It had to be examined, therefore, whether premeditation was rightly inferred in the present case from the circumstantial evidence adduced at the trial. I have already quoted the relevant passage of the judgment of the trial Court in which there are set out the five grounds on the basis of which such Court inferred "beyond any reasonable doubt" the existence of premeditation, on the part of both appellants, in relation to the murder of the victim. I propose to deal with each one of these grounds separately: The first is that the appellants, while acting in concert, intentionally killed the victim in the execution of their preconceived and well prepared plan. That is, indeed, a relevant factor, because if somebody kills another person in furtherance of a preconceived plan then, as a rule, premeditation, as understood in our law, has to be regarded as proved, in the sense that the existence of a preconceived plan is proof that the culprit has had sufficient opportunity, after forming his intention to kill, to reflect upon it and relinquish it. In the present instance premeditation has to be treated as having been sufficiently proved, because, as found by the trial Court-and I have decided that I am not doubting the correctness of this finding-the appellants killed the victim in furtherance of a common design of theirs, and all the surrounding circumstances, including their conduct before and after the murder, show that they were executing a preconceived plan, which was not formed suddenly at the time of the commission of the murder, but which had been hatched beforehand. Even if I were to assume that the primary object of the appellants was to take hostages, and that they killed Sebai either in [*174] the process of doing so or because for some reason he happened to be an obstacle to the achievement of such a primary object, I would, still, be prepared to hold that the finding that they killed him with premeditation should be upheld on appeal, because, bearing in mind their aforementioned assumed primary object, the manner in which they were armed, and in general the way in which they were pursuing it, there cannot be any doubt whatsoever that they had the intention, stemming from premeditation, to kill anyone who might have obstructed them in what they were out to do. Useful reference, in this respect, may be made to R. v. Chakoli, 8 C.L.R. 93, where a similar conclusion was reached as regards premeditation, on the basis of the particular circumstances of that case; in giving judgment Tyser C.J. said (at p. 94) :- "It is admitted that you killed this woman. That you had the intention to kill her is clear from the facts. As to premeditation,-the formation of a previous design-there is ample evidence of that also. It is not necessary that the premeditation should be directed to a particular person. The conclusion we have come to is that you had formed the design to kill anyone, whoever it might be, who obstructed you or interfered with your purpose in any way, as you ran away. This is proved by your threat to Janni, your threat to Polybio, and by your repeated threats to Myrofora. We think that you formed the design to kill anyone who obstructed you as you went along, and that you killed this woman intentionally in pursuance of that design." I would like to stress in relation to the issue of premeditation that the close association of the appellants before the murder and the way in which they were armed at the time of its commission, plus their co-ordinated conduct after the murder, which was of such a nature that it cannot be attributable to decisions on the spur of the moment but must have been well planned in advance, excludes any rational alternative possibility consistent with the innocence of the appellants, or of either of them, namely that the murder of the victim was an isolated incident committed on the spur of the moment by either of them and unrelated to a common nefarious enterprise of theirs. The second ground, on the basis of which the trial Court held that there existed premeditation, was that the wound that caused the death of the victim was inflicted on his head. I regard this as a matter of secondary nature which could, in the circumstances of the present case, have been taken into account, but which is not of a decisive nature by itself. The third ground relied on, in this connection, by the trial Court, was that the appellants assisted each other in the killing and aided each other in securing a safe escape. This is an inference which could have legitimately and safely been drawn from their conduct before, at about and after the time of the killing and, having already referred to this conduct earlier, I need not add anything more in this respect. The fourth ground was that the murder was committed by a lethal weapon that was brought to the Hilton hotel by one of the appellants. The weapon in question is the Tokarev pistol (exhibit 34) and, in my view, what is more important is not that the weapon used was a lethal one or that the shot which killed the victim was fired at his head-because these two elements-might have been treated, if taken by themselves and isolated from all the other pertinent considerations, as being only probative of malice aforethought-but that the lethal weapon was brought to the hotel for the obvious purpose of being used in furtherance of their common design and, therefore, it establishes the existence of premeditation. The last relevant ground on which the trial Court relied is that the appellants had a motive to kill the victim. This emerges only from the statement made by appellant 1 to Special Constable Georghiou, to the effect that they-the appellants-had killed the victim because he was a friend of the Israelis and he was against the Palestinians. As I have, already, indicated in this judgment, I am not prepared, in view of the way in which this case was argued on appeal, to treat that statement as evidence against appellant 2. It is evidence relating to the issue of premeditation as against appellant 1 only; but I would venture to say that even without treating the statement of appellant 1 to witness Georghiou as evidence against appellant 2, the very fact that appellant 2 was, undoubtedly, acting at the [*176] material time in concert with appellant 1, who disclosed the existence of a particular motive, warrants the safe inference that that motive was being shared by appellant 2 as well. I might conclude what I have to say on premeditation by stating that the appellants have not discharged the onus of satisfying me on appeal, as it was up to them to do, that the trial Court erred in finding that they murdered the victim with premeditation. In the light of all that has been stated in this judgment regarding the various aspects of this case, I am of the view that the verdict of the trial Court that the appellants are guilty as charged is neither unreasonable nor against the weight of evidence adduced and that their guilt has been proved with that degree of certainty which is required in a criminal case; sitting as a member of this appellate Court I do not entertain any doubt, even a lurking one (see, inter alia, HjiSavva v. The Republic

(1976)2 J.S.C. 302, as well as the Anastassiades case and the Kouppis case, supra), as regards the correctness of the conviction of the appellants. I shall deal, next, with two other matters, which have been raised by means of the appeals of the appellants, and which are independent of the factual aspects of such appeals: The first one is the contention of counsel for the appellants that the special Assize Court in Nicosia which tried and convicted them is an "exceptional Court" the establishment of which was excluded by Article 30.1 of the Constitution and that, therefore, the whole trial of the appellants took place in contravention of the Constitution; the said Article 30.1 reads as follows:- "1. No person shall be denied access to the Court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional Courts under any name whatsoever is prohibited." Analogous provisions are to be found in the Constitutions of many other countries, such as Article 8 of the Constitution of Greece, Article 94 of the Constitution of Belgium, Article 101 of the Constitution ("Basic Law") of the German Federal Republic and Article 58 of the Constitution of Switzerland (see Peaslee on the Constitutions of Nations, Revised 3rd ed., vol. III, pp. 405, 86, 385 and 952, respectively). As has been pointed out by Sgouritsas on Constitutional Law (Σγουρίτσα ''Συνταγματικόν Δίκαιον'') 1966, vol. B, Part B, p. 58, in relation to Article 8 of the Constitution of Greece, the wording of which corresponds closely to the wording of our own Article 30.1, the second sentence of the said Article 8, which excludes exceptional Courts, is a natural corollary of the first sentence of the same Article, which provides that nobody shall be deprived of the Judge assigned to him by law. According to Sgouritsas, supra, as well as to Svolos and Vlahos on the Constitution of Greece (Σβώλου και Βλάχου "Το Σύνταγμα της Ελλάδος") 1955, vol. B, p. 134, an exceptional Court is a Court set up after the event, and not already previously established by law, for the specific purpose of trying a particular case or a particular person. Article 158.1 of our Constitution provides that:- "A law shall, subject to the provisions of this Constitution, provide for the establishment, jurisdiction and powers of Courts of civil and criminal jurisdiction other than Courts to be provided by a communal law under Article 160." The Courts of Justice Law, 1960 (Law 14/60), has provided by means of subsections

(1)and

(2)of its section 3 that:- "3.-

(1)There shall be established under this Law the following Courts to exercise such jurisdiction and powers as are conferred upon them by this Law or any other Law in force for the time being:- (

1. a)District Courts; (
2. b)Assize Courts: Provided that there may be established such other Courts as may be provided by any other Law.

(2)For the purpose of this Law the Republic of Cyprus shall be divided into districts and for each of such districts there shall be held an Assize Court and there shall be a District Court, as provided in this Law." Also, section 60

(2)of Law 14/60 reads as follows:- "

(2)Assize Courts shall be held at such times as the High Court may direct: Provided that there shall be at least one sitting in the principal town of each district in every six months, unless in the opinion of the High Court, owing to absence of business or sufficient amount of business to be transacted thereat, such sitting may be dispensed with by special direction of the High Court." By virtue of the provisions of section 3

(1)of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64), the competence of the High Court under, inter alia, section 60

(2)of Law 14/60, is now vested in the present Supreme Court of Cyprus. The sittings of an Assize Court in the District of Nicosia in 1978 had been fixed by the Supreme Court to commence on February 6, May 8 and October 2, long before the murder of which the appellants have been convicted was committed on February 18, 1978; and as the present case, in view of its nature, was considered to be an urgent one that should not be left to be tried by the Assize Court due to sit on May 8, the Supreme Court directed, after an application had been made for this purpose by the Attorney-General of the Republic, that an extra sitting, described as a "special Assize", of an Assize Court in Nicosia should commence on March 3, 1978, in order to try the present case. It appears from the foregoing that the said "special Assize" is nothing more than a Court which was already envisaged by the law at the time when the murder in question was committed and all that was done was to direct that it should sit on a date not already fixed prior to the commission of the murder, for the purpose of trying the appellants, as persons accused of the commission of such murder. In the circumstances I am of the opinion that the special sitting of the Assize Court on March 3, 1978, did not render the Assize Court which sat on that date, in order to try the present case, an exceptional Court of the nature excluded by Article 30.1 of our Constitution; it was merely a normally existing Court of which an extra sitting was fixed. The other of the two aforementioned matters, which were [*179] raised by counsel for the appellants, is his submission that the trial Court "though admittedly possessing the power" to sentence the appellants to death after having found them guilty of premeditated murder was not empowered to fix the date of the execution of the sentence of death. This point was raised by counsel for the appellants at the trial at the stage of the allocutus and the trial Court ruled that there was no merit in it and proceeded to sentence both appellants to death and to fix the execution of the sentence of death on June 1, 1978; such execution was subsequently postponed by this Court, in view of the pendency of the present appeal of the appellants, and is now fixed on August 22,

1. Rule 5A of the Criminal Procedure Rules was introduced by means of the Criminal Procedure (Amendment) Rules, 1964, which were published in the Second Supplement to the Official Gazette of May 28,
2. The said rule 5A provides that an Assize Court must fix the date of execution when it passes sentence of death and that the Supreme Court, or any two Judges of it, may postpone such execution to another date. The aforesaid Rules of 1964 were made, as it is stated in their preamble, in the exercise of the powers vested in the High Court (now this Supreme Court) by means of Article 163 of the Constitution and section 176 of the Criminal Procedure Law, Cap.
3. It has been submitted by counsel for the appellants that rule 5A is ultra vires Articles 163 and section 176, above. Counsel for the respondent submitted that the said rule was, in any event, intra vires Article 163.1; and he did not appear to place much reliance on the rule-making powers conferred by section
4. Article 163.1 reads as follows:- "
5. The High Court shall make Rules of Court for regulating the practice and procedure of the High Court and of any other Court established by or under this Part of this Constitution, other than a Court established under Article 160." The crucial words to be construed are "....regulating the practice and procedure ....of any other Court...." (".. επί σκοπώ ρυθμίσεως της διαδικασίας .. ενώπιον παντός άλλου δικαστηρίου.."); and in the light of their correct construction it has to be decided whether once a sentence of death has been passed the fixing of the date of its execution is, also, part of the proceedings before the Court concerned. I have found this problem to be a very thorny one because of the fact that until 1964 it has never been the practice of the Courts in Cyprus to fix the date of the execution of a death sentence; on the contrary it has been the practice in this country to have the date of the execution of a death sentence fixed by the Executive Branch of the Government, after the decision as to whether or not to exercise the prerogative of mercy had been reached. 1 was, therefore, at first-bearing, also, in mind the fact that our Constitution is based on the doctrine of the separation of powers'-inclined to the view that the aforementioned rule 5A was ultra vires Article 163.
6. Another aspect of the matter which has given me, also,some difficulty is the fact that "............. the penalty of deathdiffers from all other forms of criminal punishment, not in degree but in kind." (per Mr. Justice Stewart in Furman v. State of Georgia, 33 L. Ed. 2d 346, 388); especially because "An individual in prison does not lose 'the right to have rights' " but "An executed person has indeed 'lost the right to have rights'" (per Mr. Justice Brennan in the Furman case, supra, at pp. 378-379). So, in my opinion, it would be an erroneous approach to compare what is done by trial Courts in relation to other forms of punishment in criminal cases, as, for example, the fixing of the date as from when a sentence of imprisonment commences, or in relation, generally, to the execution of Court orders in other proceedings before our courts, with the fixing of the date of the execution of a death sentence, for the purpose of arriving at a conclusion as to whether or not the fixing of the date of the execution of a death sentence can properly be deemed to be part of the proceedings before the trial Court which has passed such sentence. I have decided, however, eventually, that, notwithstanding my above misgivings, I could not pronounce that the 1964 Rules of Court, which introduced the aforementioned rule 5A, were ultra vires Article 163.1 of our Constitution, because doing so would entail, in effect, to hold that the said Rules were not warranted by such Article at all and they, therefore, are unconstitutional; and I could not go as far as that because unconstitutionality must be established beyond reasonable doubt (see, for example, Sofroniou and Others v. The Municipality of Nicosia and Others,

(1976)6 J.S.C. 874, 920-921) and I have not been satisfied to that degree that regulation 5A is completely inconsistent with Article 163.

1. Counsel for the appellants has stated, both at the trial and during the hearing of these appeals, that he is not challenging the validity of the passing of the sentence of death on the appellants, if they have been rightly found guilty of premeditated murder. He has proceeded, however, to argue before this Court that if it were to be found by us that the trial Court was empowered to fix the date of execution of the death sentence then such execution would be unconstitutional as offending against Article 8 of the Constitution, which prohibits torture or inhuman or degrading punishment or treatment, and against Article 28 of the Constitution, which safeguards the right to equality and prohibits discrimination. He has submitted that the execution of the sentence of death passed on the appellants will amount to unequal treatment, contrary to Article 28, as well as to inhuman punishment, contrary to Article 8, since for the last 16 years nobody who has been found guilty by our Courts of premeditated murder has been executed in Cyprus; and he has stressed, in this respect, also, that the execution of the death sentence in the case of his clients would be a discriminatory course, in the sense that they are aliens and for the last 16 years no Cypriot who was sentenced to death was executed; as a matter of fact no execution of any death sentence has taken place in Cyprus since
2. Regarding the matter of the sentence of death in Cyprus I have made certain observations in recent years, which I think it is useful to recapitulate in the present judgment: In Vouniotis v. The Republic,

(1975)2 C.L.R. 34, I stated (at pp. 60-61) the following:- ".......... though the death penalty for murder remains statutorily in force in Cyprus, it has, as it can be judicially noticed, not been enforced, irrespective of the gravity of the various murder cases, for more than ten years, so that it might conceivably have been treated as having been de facto abolished, in the course of the evolution of social progress, as in other countries." In the Anastassiades case, supra, I reiterated the above view (at p. 721) and I added that- "I repeat this observation so that the appropriate authorities of the Republic may, if they deem it fit, enact legislation in respect of this matter, because, irrespective of other aspects of it, the execution now, all of a sudden, of a death sentence might give rise to constitutional problems such as those faced by the Supreme Court of the United States of America in the series of cases commencing with Furman v. State of Georgia, 33 L. Ed. 2d 346." The Furman case, supra, was referred to in argument during the hearing of the present appeals and I shall be dealing with it and other relevant U.S.A. case-law later on in this judgment. In the Kouppis case, supra, I said (at pp. 1894-1895) the following, in relation to counsel's contention that Article 7.2 of the Constitution, which provides that the death penalty may be imposed in cases of, inter alia, premeditated murder, is unconstitutional as contravening, among others, the provisions of the aforesaid Article 8 of the Constitution, as well as Article 7.1 of the Constitution, which safeguards the right to life :- "Lastly, I would like to deal, briefly, with the contention of counsel for the appellant that the death sentence was invalidly passed upon the appellant in the present case. Of 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 of 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 of Article 7.2 of 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 of 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 of the Constitution. Nor could the death sentence, which was imposed in the present instance in full conformity with the provisions of Article 7.2 of the Constitution on the basis of the findings of the trial Court, be treated as being vitiated because of 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 of Cyprus and, for this purpose, it has to apply the Constitution as the supreme law. I would like, nonetheless, to reiterate that I still adhere to what I have said about the execution, as contradistinguished from the imposition, of a death sentence, in Vouniotis v. The Republic,

(1975)5 J.S.C. 524, 553 and in Anastassiades v. The Republic,

(1977)5 J.S.C. 516, 721; I should, further, refer, in this respect, for whatever guidance it might be found to offer, to the decision of the Privy Council in England in De Freitas v. Benny, [1975] 3 W.L.R. 388." The De Freitas case, supra, has also, been referred to during the hearing of the present appeals and I shall revert to it in due course. In the Kouppis case, Hadjianastassiou J. after referring to my above observations in the Vouniotis and Anastassiades cases, supra, in relation to the death sentence, said (at pp. 1959-1960):- "But with respect, the argument of counsel is really unacceptable and cannot in any way stand, because one can not attack the constitutionality of one paragraph of Article 7 as contravening another, once the framers of the Constitution thought fit to include in the Constitution that a law may provide for such penalty of depriving a person of his life only in cases of premeditated murder. Finally, and irrespective of the difficulties which have given rise to constitutional problems on the question of death sentence in the United States, I would dismiss this contention of counsel." Also, in the Kouppis case, A. Loizou J. stated the following in relation to the same matter (at pp. 1983-1985):- "I turn now to the legal and constitutional issues raised by this appeal. The first one is that the addition of a reference to sections 20 and 21 of the Criminal Code, Cap. 154, in the count on which the appellant was convicted, was unconstitutional as contravening Article 7 of the Constitution. This ground is also connected with the next one which is whether the imposition of the death sentence to the appellant is unconstitutional or otherwise invalid, because of Article 7.2 of the Constitution 'being unconstitutional due to the conflict with other provisions of the Constitution, such as Article 7.1 and Article 8'. Article 7 of the Constitution says: '1. Every person has the right to life and corporal integrity. 2. No person shall be deprived of his life except in the execution of a sentence of a competent Court following his conviction of an offence for which this penalty is provided by law. A law may provide for such penalty only in cases of premeditated murder, high treason, piracy jure gentium and capital offences under military law. 3.........................'. And Article 8 provides that 'No person shall be subjected 'to torture or to inhuman or degrading punishment or treatment'. I find nothing in the aforesaid two Articles to suggest that the death penalty may not be imposed in the case of a person aiding and abetting the commission of a premeditated murder or committing same in furtherance of a common design. This is a pure matter of criminal liability which leads to a conviction for the offence of premeditated murder. Also, the wording of Article 7.2 is so clear and explicit and there is no contradiction in it with paragraph

(1)thereof which must be read subject to the provisions of paragraph 2, nor is there any contradiction with the provisions of Article 8 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)of Article 7 of the Constitution." I think I should point out, at this stage, that Article 7.2 of the Constitution does not render obligatory the imposition of the death sentence in a case of premeditated murder, but only enables its execution if it is provided for by a Law; it reads as follows:- "

1. No person shall be deprived of his life except in the execution of a sentence of a competent Court following his conviction of an offence for which this penalty is provided by law. A law may provide for such penalty only in cases of premeditated murder, high treason, piracy jure gentium and capital offences under military law." It follows, therefore, that a Law providing for the imposition of the death penalty in a case of premeditated murder may be constitutional under Article 7.2, but it may be framed in such a manner as to offend against some other Article of the Constitution, as, for example, Article 8, if the death sentence is to be executed in a manner amounting to torture or inhuman or degrading punishment or treatment contrary to such Article; the said Article 8 reads as follows:- "No person shall be subjected to torture or to inhuman or degrading punishment or treatment." Before I proceed further I think it is appropriate to deal now with the De Freitas and Furman cases, supra, which were referred to by counsel during the hearing of these appeals: In the De Freitas case, which was a case decided by the Privy Council in England on appeal from the Court of Appeal of Trinidad and Tobago, it was held (at p. 389):- "......... that the executive act of carrying out a death sentence pronounced by a Court of law was authorised by laws that were in force at the commencement of the Constitution and the appellant was, therefore, debarred by section 3 of the Constitution from asserting that it abrogated, abridged or infringed any of his rights or freedoms recognised and declared in section 1 or particularized in section 2....". Section 3 of the Constitution of Trinidad and Tobago "debars the individual from asserting that anything done to him that is authorised by a law in force immediately before August 31, 1962", when such Constitution came into force, "abrogates, abridges or infringes any of the rights or freedoms recognised and declared in section 1 or particularised in section 2". The said section 1 provides, inter alia, that nobody shall be deprived of the right to life "except by due process of law", and safeguards, also, "the right.............. to equality before the law and the protection of the law;" and the said section 2 prohibits, inter alia, "the imposition of cruel and unusual treatment or punishment". As was already stated it was held by the Privy Council, in view of the provisions of section 3 of the Constitution of Trinidad and Tobago, that carrying out a death sentence pronounced by a Court did not infringe the rights safeguarded by means of sections 1 and 2 of such Constitution, inasmuch as the execution of the death sentence was authorised by Laws which existed before the coming into force of the Constitution. It is clear that the constitutional situation in Trinidad and Tobago is radically different from the corresponding constitutional situation in Cyprus because under our Constitution Laws existing since before it came into force have to be construed and applied in conformity with the Constitution (see, in this respect, Article 188 of the Constitution); and, actually, the sentence of death is provided for in Cyprus, as a punishment-for criminal offences, by means of sections 26 and 27 of Cap. 154, which is a Law existing since before the coming into force of our Constitution on August 16,
2. It is interesting to note that in the De Freitas case, supra, it was submitted, on behalf of the appellant, that a substantial increase of the according to the previously existing practice average period of time which intervened between the passing of a death sentence and its execution resulted in making the death sentence a "cruel and unusual punishment". The Privy Council did not deal directly with the substance of this submission but rejected it on other grounds. In the Furman case, supra, which was determined together with two other similar cases, namely Jackson v. State of Georgia and Branch v. State of Texas (33 L. Ed. 2d 346) the U.S.A. Supreme Court dealt with the issue of whether the imposition and carrying out of the death sentence constituted cruel and unusual punishment; the headnote of the report of that case reads as follows (at pp. 346-348):- "Each of the three petitioners was Negro, was convicted in a state Court, and was sentenced to death after a trial by a jury which, under applicable state statutes, had discretion to determine whether or not to impose the death penalty. One petitioner was convicted of murder, and his death sentence was upheld by the Georgia Supreme Court (225 Ga 253, 167 SE2d 628). The second petitioner was convicted of rape, and his death sentence was upheld by the Georgia Supreme Court (225 Ga 790, 171 SE2d 501). And the third petitioner was convicted of rape, and his death sentence was upheld by the Texas Court of Criminal Appeals (447 SW2d 932). On certiorari, the United States Supreme Court reversed the judgment in each case insofar as it left undisturbed the death sentence imposed, and the cases were remanded for further proceedings. In a per curiam opinion expressing the view of five members of the Court, it was held that the imposition and carrying out of the death sentence in the present cases constituted cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments. Douglas, J., concurring, stated that it is cruel and unusual to apply the death penalty selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the boards,