[Ο' BRIAIN, P., ZEKIA, VASSILIADES and JOSEFHIDES, JJ.] UOSTAS P. ANTONI, Appellani, 1961 June 20, Nov 9 — p C o $ ANTONI v « · CHRISTOS CHRISTOS LOIZOU OF EPTAGONIA, TREASURER OF THE COMMITTEEOFEPTAGONIA IRRIGATION DIVISION (KOUMENES SPRING) REPRESENTING THE OWNERS THEREOF, Respondents. s (Criminal Appeal No. 2367) Criminal law—Act'done in theexercise of a bonafide claim of right— The Criminal Code,Cap. 154, section 8—Complete defence as distinctfrom that of mistake offact under section10. By section 8 of the Criminal Code "a person is not crimi nally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honeat claim of right and without intentionto defraud". On the other hand section 10 provides: "A person who does or omits to do an act under an honest and reasonable, but mistaken, belief, in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist The appellant was charged with interfering with the Irrigation Works of Eptagonia Irrigation Division contrary to the Irri gation Divisions (Villages) Law, Cap. 342, section 38
(2)(b) and the Eptagonia Irrigation Division (Koumenes Spring) Regulations, 1954, reg. 12{1) (c). The defence put up was that the appellant had done the act charged in the honest exercise of a bona fide claim of right. The trial judge dealt with that defence as though it were a defence of an honest mistake of fact under section 10 of the Criminal Code, and, having held that in this case the alleged mistake was not one of fact but of law, convicted the appellant as charged. The High Court reversing that judgment: Held:
(1)On the evidence before the trial Judge the accused had a complete defence to the charge under section 8 of the Criminal Code. 295 Loizou 1961 June20, Nov. 9 COSTAS P. ANTONI
(2)The trial judge failed to direct his mind to the provisions ofsection 8 and dealt with the defence thereunder as though it were a defence under section 10. v. Appeal allowed. Conviction quashed. CHRISTOS LOIZOU Appeal against conviction. The appellant wasconvicted onthe 13.4.61at the District Court of Limassol (Criminal Case No.2010/58) on one count of the offence of interference with the Irrigation works of Eptagonia Irrigation Division (Koumenes Spring) contrary to Eptagonia Irrigation Division (Koumenes Spring) Regulations, 1945, section I2(l)(c) Cyprus Gazette, Supplement No. 3 dated 28.6.45, p. 159 Irrigation Divisions (Villages) Law, Cap. 111sec.38
(2)(b) and wassentenced byOrphanides, D.J. to £2 fine or 10days' imprisonment and £13costs or 2 months' imprisonment (sentence commencing on 13.4.61, with two months' stay of execution). J. Potamitis for the appellant. PL C. Solomonides for the respondent. The judgment of the Court wasdelivered by: JOSEPHIDES, J.: In this case the appellant was charged with interfering with the Irrigation Works of Eptagonia Irrigation Division (Koumenes Spring), contrary to the Eptagonia Irrigation Division (Koumenes Spring) Regulations, 1945,regulation 12(l)(c),andtheIrrigation Divisions(Villages) Law, Cap.Ill, section 38
(2)(b) (now Cap.342). The defence put up by the accused was that he had a bona fide claim of right, within the provisions of section 8of the Criminal Code, and evidence for the prosecution and the defence was heard by the trial Judge. In the course of his judgment the Judge purported to deal with that point, but, in fact, hedealt with that defence as though it were a defence under the provisions of section 10of theCriminal Code. Mr. Potamitis in his address to the Court (at page 22of the record) stated that the accused destroyed the ditch in dispute, which wasin his own land, on the assumption that the said ditch washisproperty, that is, that the act was done by the accused in the exercise of an honest claim of right. 296 The Judge, in dealing with that question in his judgment (at page 25 of the record) stated, "It was also in effect argued by the defence that what the accused did he did so under a mistake of fact. But the evidence shows that if there was a mistake on the part of the accused it was a mistake of law and not of fact. And mistake of law is not an excuse". On reading section 10 of the Criminal Code one understands that the Judge had that particular section in mind, and that he failed to direct his mind to the provisions of section 8. On the evidence before the trial Court we are satisfied that the accused had a bona fide claim of right to the ditch in question, which was in his own land, and that is a complete defence to the charge. On that ground, the appeal isallowed and the conviction quashed. The respondents are ordered to pay to the appellant the costs of this appeal. Appeal allowed. quashed. 297 Conviction 1961 June 20, Nov. 9 COSTAS P. ANTONI V. CHRISTOS LOIZOU