clr/1961/1961_1_340.pdf

(3)of the Criminal Procedure Law, Cap. 155. T h e appellants waylaid the car of a company in order t o rob its cashier who was travelling in t h a t car and carrying with him a considerable amount of money. On seeing the car approaching t h e place where t h e appellants werehiding themselves, two of them emerged therefrom a n d signalled 340 to the car to stop. The car did not and went on past them. Thereupon, one of the appellants (not identified) fired twice a t the car from a close distance. A bullet smashed the window pane, penetrated the car and hit the back of the head of the cashier who, although injured, was able to pick up the bullet which had hit him. The first appellant and one of the other two were found in possession of a pistol and a revolver, respectively, and of live rounds of ammunition. All three appellants were charged before the Assize Court sitting at Limassol on an information containing eight counts as follows: On count 1 with the attempted murder of the cashier; on count 2 with the attempted murder of a Police Officer who took part in the chase; on count 3 with attempted armed robbery and on counts 4 to 8 with possessing and using a pistol, with possessing and using a revolver and with possessing rounds of ammunition. All three appellants, who pleaded not guilty, were acquitted of the charge on count 2, but were convicted on all the remaining seven counts as charged and were sentenced to the following sentences: The first appellant to twenty years' imprisonment on count 1 (attempted murder of the cashier), the other two appellants to eighteen years' imprisonment on the same count; all three appellants to fourteen years' imprisonment on count 3 (attempted armed robbery), and to four, five, four, five and two years imprisonment on each of the remaining counts 4 to 8, respectively, all sentences to run concurrently. The first appellant appealed against all his convictions as well as against all the sentences imposed on him. The second and third appellants appealed only against their sentences. I t was argued on behalf of the first appellant t h a t he was wrongly convicted of the attempted murder on the ground, inter alia, t h a t intent to kill had not been established. Section 204 of the Criminal Code, Cap. 154 (as it stood before the amending Law No 3 of 1962) provided: "Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder". "Malice aforethought" was defined by section 207 of the Criminal Code prior to the amending Law No. 3 of 1962 {supra) as follows: "Malice aforethought shall be deemed to be established by evidence proving whether expressly or by implication any one or more of the following circumstances:(a) An intention to cause the death of or to do grievous 341 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. T H E REPUBLIC harm toany person, v.hether such person istheperson actually killed or not; (b) Knowledge that the act or omission causing death willprobablycausethedeath oforgrievousharmto someperson, whether such person is the person actually killed or not, although, such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit afelony when in the circumstances the commission of such'felony is dangerous to life and likely in itself to cause death (d) an intention by the act or omission to facilitate the flight or escapefrom custody ofany person whohas committed or attempted to commit a felony". Held:- As totheconviction of appellant No. I of attempted murder.

(1)In cases of murder, the "malice aforethought" required by the Criminal Code, Cap. 154, sections 204 and 207 (supra) may be established irrespective of, and quite apart from, any intent to kill. On the contrary, the ofll'ence of attempted murder always involves an actual intent to kill and that intent is the principal ingredient ofthe crime. An intention merely to use violence or to do grievous harm, does not suffice, notwithstanding that if death v>eretoresult therefrom the person so using violence or inflicting harm could be found guilty of murder. This principle was laid down in the case of R. v. Whybrow,35Cr. App. R. 141,at p. 146,per Lord Goddard, C.J., and was followed and applied by this Court in the case of Nicolas Georghiou Kkolis v. The Republic, Criminal Appeal No. 2291,decided on March 29,1961; (Note: now reported in this volume at p. 53, ante)

(2)Per ZEKIA, J.: Had this attack caused the death of any of the occupants of the car, the man who fired the shot, whether he intended to kill or not, would have committed murder and his companions involved in the felonious adventure would have also been guilty of murder. Intent to kill is not a necessary ingredient in all cases of murder. "Malice aforethought" however is the necessary ingredient but this phrase as defined in section 207 of the Criminal Code comprises many instances which have nothing todo with an actual intent,to kill. 342

(3)The intent to kill must be proved to the Court's satisfaction, the burden in t h a t regard being throughout on the prosecution.

(4)Although intent to kill can be inferred as a fact from the surrounding circumstances of a particular case, it is not sufficient t h a t such an inference is a reasonable one; it should be the only reasonable inference t h a t can be drawn from the facts. If on a review of the whole evidence, the Court either think the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted. Statement of the law in Reg. v. Nicos Sampson Georghiades (No. 2)

(1957)22 C.L.R., 128, at p. 133 and in R. v. Steane

(1947)K . B . 997, a t p. 1004 ; per Lord Goddard, C.J., adopted.

(5)(VASSILIADES, J., dissentiny): (A) In the instant case the trial court did not direct their mind to the question of intent to kill. In fact there is no finding of the Court in their judgment on this point. On the totality of the evidence in the case there isroom for three or four views as to the intent in firing at the complainant. As on a review of the whole evidence, the Court would be left in doubt as to the actual intent, the conviction on the charge of attempted murder should be set aside. Principles laid down in Sampson's case (ubi supra) and in Stearic's case {ubi supra), applied. (B) For the reasons stated above, and having regard to the convictions of the first appellant on the other counts which must be affirmed, his conviction on count 1 of the attempted murder must be set aside without ordering a retrial or considering whether he should be convicted of any lesser offence.

(6)Per JOSBPHIDES, J.: (A) I t was argued on behalf of the prosecution t h a t on the authority of the recent case Reg. v. Smith

(1960)3 W.L.R. 92, intention can usually be determined inferentially from the surrounding circumstances, including the presumption of law t h a t a man intends the natural and probable consequences of his acts. B u t it should be borne in mind t h a t the Court of Criminal Appeal in t h a t case were considering the summing up of the trial Judge in a case of murder. The House of Lords subsequently restated t h a t proposition in the following terras {D.P.P. v. Smith

(1960)3 W.L.R. 546, at p. 547: 343 1961 Sept. 29, Oct, 19, 20, Dec. 8 I0ANN1S MICHAEL PEFKOS & OTHERS v. THE REPUBLIC 1961 Sept. 29, Oct. 19, 20, Dec. 8 IOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC " I t is immaterial what the accused in fact contemplated as the probable result of his actions, provided he is in law responsible for them in t h a t he is capable of forming an intent, is not insane within the M' Naghten Rules and cannot establish diminished responsibility. On t h a t assumption, the sole question is whether the unlawful and voluntary act was of such a kind t h a t grievous bodily harm was the natural and probable result and the only test of this is what the ordinary responsible man would, in all the circumstances of the case, have contemplated as the natural and probable result. Once the accused's knowledge of the circumstances and nature of his acts has been ascertained, the only thing t h a t can rebut the presumption t h a t he intends the natural and probable consequences of those acts is proof of incapacity to form an intent, insanity or diminished responsibility. The test of the reasonable man, properly understood, is a simpler criterion than t h a t of the "presumption of law" and containsallthenecessaryingredientsofmalice aforethought". Unless the House of Lords has by inference overruled the existing authorities, a man cannot be convicted of wounding with i n t e n t to murder, unless his attitude of mind was such t h a t he intended to kill. Smith's ease does not overrule Steane's case (supra) but distinguishes it on the basis t h a t the principle restated in t h a t authority (R. v. Steane) is confined t o cases in which an actual or overall intent or desire has to be proved (D.P.P. v. Smith, (supra) a t page 558). Such cases do not include cases of murder, b u t they are confined to cases like R. v. Steane, and cases of attempted murder, or wounding with intent t o murder, such as R. v. Whybrow (supra) where t h e intent is the principal ingredient of the crime. (B) Where on a true construction of a statute " i n t e n t " equals "desire" or "purpose" as in the case of attempted murder, or wounding with intent to do grievous bodily harm, then the rule laid down by Lord Goddard in R. v. Steane would be applicable,

(1947)K . B . a t p. 1004) i.e. "if, on a review of the whole evidence (the jury) either think the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted". As Lord Denning (a member of the House of Lords in the Smith's case) said recently, there is nothing illogical or inconvenient about interpreting " i n t e n t " in some statutory offences to mean desire or purpose, whereas 344 in murder cases it means not only desire or purpose but includes an intentional act done with knowledge of the probable consequences. ("Responsibility before the Law" by Lord Denning

(1961), page 28).

(7)Per VASSITAADES, J. in his partly dissenting judgment: (A) Now coming to the count for attempted murder (count 1), the Court had similarly to find from the conduct of the gunman who fired the wounding shot, the mens rea and theactusreusrequired toestablishtheattempt charged. The Court had to find the mensrea,i.e. the intent to cause the death of another, required by section 214;and, furthermore, to find the actus reus necessary to establish sufficiently in law, the crime of attempted murder charged. The carrying of the revolver in those circumstances might be an act indicating an intent to cause death; but it would not, in itself be an actus reussufficient to establish an attempt to kill. Similarly the loading of the revolver might bea step further in carrying out the intent to cause death; but it might again fall short of constituting the actus reits required to establish the crime under s. 214. But the gunman in this case did not stop at the carrying of a loaded revolver. He showed what was his "intent" in so carrying it, when, seeing that the car did not obey the signal to stop, the gunman raised his hand, aimed at the car as it was passing within a few paces from him, and pulled the trigger well knowing that that would cause a bullet to hit the car more or less at the part aimed at, that is to say at the glass of the side-door, behind which the cashier (or another person of his party) was sitting. There was no suggestion at the trial that the person sitting near the glass window could not be seen. That same person (the cashier, P.W.4) was asked by counsellor the appellant, in cross-examination, to describe the gunman's moustache. In fact a bullet did go out of the gunman's weapon, as intended, and piercing the glass-window, wounded the cashier on the head. Surely, if the cashier died in consequence of that wound, the killing would amount to murder; causing the death of another with intent. The trial court found from the series of the gunman's acts ending with the pulling of the trigger, in the circumstances, both, the mens rea required by s. 214, and the actus reussufficient to establish the attempt, as required by law. 345 1961 Sept. 29, Oct. 19, 20, Dec. 8 IOANNIS MICHAEL PEFKOS & OTHERS v. T H E REPUBLIC 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS The conviction on the count for attempted murder - a unanimous conviction by a court of three legally qualified and experienced judges - to me clearly indicates t h a t the evidence satisfied the court, beyond reasonable doubt, on both elements of the crime. v. THE REPUBLIC (B) I n my opinion, this Court can only set aside t h a t conviction, if the Court is prepared to hold t h a t the firing of the weapon, in the circumstances, cannot reasonably lead to the conclusion reached by the trial court. T h a t is t o say, t h a t the trial court could not reasonably find an intention to cause death, in the act of an armed robber, firing his weapon at his intended victim from a close position, in the circumstances shown by the evidence in this case, and actually wounding the victim on the head. I find myself completely unable to share such view of the facts. 1 may add t h a t 1 cannot see how the trial court could reasonably reach any other conclusion, as to the crime c o m mitted b y the gunman who lired the wounding shot. Held:counts: As to the conviction of appellant Aro. 1 on the other There was ample evidence supporting those convictions. Held as to the sentences:

(1)Sentence of first appellant on count 3 (armed robbery), fourteen years' imprisonment, affirmed.

(2)Sentence of second and third appellants on count 1 (attempted murder) and count 3 (armed robbery), eighteen and fourteen years' imprisonment, respectively, being manifestly excessive, in view of the lesser role they played in the commission of t h e crime, reduced to ten years' imprisonment on each count, t o run concurrently.

(3)The sentences passed on all three appellants on counts 4 t o 8 should be set aside on the following ground: Although the charges on those counts (carrying and using a pistol and a revolver, and possessing rounds of ammunition) have bjjen proved and the appellants are technically guilty on those charges, nevertheless, as the same facts and circumstances formed p a r t and parcel of the attempted robbery charged and of which the appellants have beenconvictedandsentenced, no sentence should have been passed upon those counts, 346 otherwise the Court might be taken to have punished twice a person for the same act or omission which is expressly forbidden by t h e Criminal Code, Cap. 154, section 19 *, Article 12, paragraph 2, of the Constitution **and the Criminal Procedure Law, Cap. 155, section 40

(3).*** 1961 Sept. 29, Oct, 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. Appeal of first appellant against his conviction on count 1 allowed. His appeal against the . other convictions dismissed. His appeal against sentence on count 3 (attempted armed robbery) dismissed: against sentences on the remaining counts allowed. Appeals against sentence of the second and third appellants on counts 1 and 3 allowed. Their sentences on those counts reduced to ten years' imprisonment on each count, to run concurrently. Sentences on the remaining counts set aside. Cases referred to: Nicolas Georghiou Kkolis v. The Republic, Criminal Appeal No. 2291,reported in this Volume at p . 53, ante; Reg. v. Nicos Sampson Georghiades (No 2) 22 C.L.R. 128; R. v. Steane

(1947)K . B . 997; Reg. v. Smith

(1960)3 W.L.R. 92; D.P.P. v. Smith

(1960)3 W.L.R. 546; R. v. Whybrow 35 Cr. App. R. 141; R. v. Appleby 28 Cr. App. R. 1. * Section 19of Cap. 154 "A person cannot be twice criminally responsible either under the provisions of this Law or under the provisions of any other Law for the same act or omission, except " ** Paragraph 2of Article 12of the Constitution reads as follows: "A person who has been acquitted or convicted of an offence shall not be tried again for the same offence. No person shall be punished twice for the same act or omission except where death ensues from such act or omission". *** Section 40

(3)of Cap. 155: "If the Court convicts theaccused generally on thewholecharge,thelegaleffect ofsuchconvictionshallbetoconvict him on'each of the counts contained therein and the Court may, thereupon, pass upon him the same sentence as if he had been separately convicted on every such count: Provided that not more than one sentence shall, in any case, be passed upon any person upon the same facts." 347 THE REPUBLIC 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC Appeal No. 2396 against conviction and sentence. Appeals Nos. 2397 and 2398 against sentence. The appellants were convicted on the 10th July, 1961 at the Assize Court of Limassol (Criminal Case No. 3402/61) on seven counts of attempted murder, attempted armed robbery, possessing and using a pistol and a revolver,and possessing explosive substances, and were sentenced by Michaelides, P.D.C., and Limnatitis and Demetriou, D.JJ. to the following sentences : First appellant to 20 years' imprisonment on the count for attempted murder, 14 years' imprisonment on the count for attempted armed robbery and to 4, 5, 4, 5 and 2 years' imprisonment, respectively, on the remaining counts, sentences to run concurrently. The second and third appellants were sentenced each to 18 years' imprisonment on the counts for attempted murder, to 14 years' on the count for attepted armed robbery and to the same terms of imprisonment as the first appellant on the remaining counts, all sentences to run concurrently. Lefkos Cleridesfor the appellants. Ach. Frangos^ for the respondent. Cur. adv. vult. The facts sufficiently appear in the judgment of VASSILIADES, J. O' BRIAIN, P.: I have read the judgment which Mr. Justice Vassiliades is about to deliver and I am in agreement with same, except as regards the conviction of the appellant Ioannis Pefkos on count 1, attempted murder of the cashier Xenis, contrary tosection 214(a)and 20of theCriminal Code. The facts are fully set out in thatjudgment and Ineednothere state them. The offence of attempted murder involves an intent to kill and that intent is the principal ingredient of the crime. An intention merely to use violence or to inflict harm, does not suffice notwithstanding that if death were to result therefrom the person sousingviolenceorinflicting harm could be found guilty of murder. This.matter was considered by this Court in the case of Nicolas Georghiou ^Kkolis" (Criminal Appeal 2291) v. The Repubic. In that case, this court laid it down that where 348 the charge is one of attempted murder, the trial Court must specifically consider the issue whether or not the accused had formed the intention to kill. In Fngland, the matter has been considered by the Court of Criminal Appeal in Whybrow's case, 35 Cr.App.R. 141 at page 148. In that caseone of attempted murder by administering an electric shock the trial Judge had charged the jury as follows: "You will notice there, members of the jury, that I said if you are satisfied that, first of all, he made those connections with the wires and, secondly, that he intended to kill or do grievous bodily harm" "If you are satisfied beyond all reasonable doubt that on that evening of the 30th April he did connect up this wire in such a way that it would pass the domestic supply in the skirting of the bedroom alongthewiretothesocket in the cupboard, which in turn was connected with the soapdish, and if you are further satisfiedthatindoingthat he intended to kill his wife or todohergrievousbodily harm, then he would be guilty of attempted murder". The Court of Criminal Appeal held that that was clearly a misdirection and that the jury should have been told that the essence of the offence was the intent to murder. It seems to me that, from the evidence on record in this case, at least three different intentions might be attributed to the assailant when firing the pistol.

(1)The intention to halt the passing car;

(2)the intention to wound or maim the occupants in the car ;

(3)an intention to kill them. Itwas the duty and function of the trial Court to consider the matter in the light of all the evidence given before them and to state expressly on the record what inference, if any, they were prepared to draw with respect to that assailant's intent, the principal ingredient and the very essence of the crime. The record does not show that the trial Court addressed its mind at all to the question. There is no express finding as to what was the specific intent of the assailant at the timehefiredthe pistol. By reason of this omission on the part of the trial Court, the conviction for attempted murder cannot stand in my opinion. It would be open to this Court to order a new trial of the appellant upon that ground. But, having regard to the convictions of the accused on the other counts which must be affirmed for the reasons to be given by Vassiliades J., and to the views of all the members of this Court regard349 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC O' Bnain, P. 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS ing the sentence to be imposed, I consider that the proper course to adopt in this case is for this Court to set aside the conviction upon count 1,and to affirm the convictions of the appellant on all other counts, the sentences to be reduced as set out in thejudgment of Mr. Justice Vassiliades. v. THE REPUBLIC O' Briain, P. ZEKIA, J.: Allthreeappellants in thiscasewere convicted of attempted murder and of attempted armed robbery and of other offences connected with the above but relatively minor in character. Appellant No. 1 was sentenced to 20 and the other appellants to 18 years of imprisonment on the attempt to murderandallappellantsto 14years'imprisonment on the count of attempted armed robbery. Appellant No. 1 appealed against conviction and sentence on all counts whereas appellants No. 2 and No.3 appealed only against sentence on the ground that it was manifestly excessive. I had the advantage of reading the judgment of my brother Judge Vassiliades in this case and with a view to shorten my judgment I adopt his statement of facts and also his reasons for finding that there was adequate evidence in the case to implicate appellant No. 1 in the felonious adventure the subject matter of appeal. I am of the opinion, however, that appellant 1was not rightly convicted of attempted murder either as a principal in the first degree or as a party to the offence. The three appellants waylaid the car of the Cyprus Palestine Plantations Company in order to rob the cashier of the company who was travelling in the car and carrying with him considerable amount of money in a metal box. On seeing the said car approaching the place they were apparently hiding themselves two of the prisoners emerged from under the trees signalled to the car to stop. The car did not and wentpast them. One of the prisoners thereupon fired twice at the car from a close distance. A bullet smashed the window pane penetrated the car and hit the back of the head of the cashier who though injured was able to pick up the bullet which had hit him. The car at the time was travelling at a speed of 30 - 35 miles per hour and heavy rain wasfalling. The screen wipers beingout of order it wasnot easy to discern objects or persons through the panes of the car. Had this attack caused the death of any of the occupants .350 of the car, whether the man who fired at the car intended to kill or not, would have committed murder and his compa­ nions involved in the felonious adventure would have also been guilty of murder. Intent to kill is not a necessary in­ gredient in all cases of murder. Malice aforethought is a necessary ingredient however in all cases but this phrase as defined in section 207 of the Criminal Code comprises ins­ tances which have nothing to do with an actual intent to kill. In an attempt to murder,however, actual intentto cause death as distinct from presumed intent is an ingredient of the offence and this has to be established. To my mind it will only cause confusion if one compares the presumed intent involved in a murder case with the actual intent required in an attempted murder. In the former there are statutory presumptions for establishing malice aforethought whereas in thelatter thereis nosuch presumption and theintent cannot be established by any presumption but must be inferred as a fact from the surrounding circumstances of a particular case. The trial court does not seem to have directed their mind as to this distinction. Bearing in mind that the prisoners, as far as the evidence goes, were engaged in stopping the car with a view to snatch the money transported therein coupled with the fact that shortly before they had signalled to the car to stop and that the two shots were fired at the car after it failed to stop ; under such circumstances the inference to be drawn as to the intent of the man firing at the car might well be to threaten the driver, halt the car in order to enable the gang to execute the common purpose of robbery. Such an inference in my view can be drawn at least with equal force with the inference that the gunman who fired at the car from close distance intended to kill one or more of the passengers. In an earlier case I had the occasion to deal with intent as an ingredient in an attempt to commit a felony similar in nature to the present one. In Reg. v. Nicos Sampson Georghiades, (No.2), 22 C.L.R. at p. 132 in delivering the majority judgment I had quoted the following from Lord Goddard in Steane's case

(1947)Κ. B. 997 at p. 1004: " N o doubt, if the prosecution prove an act the natural consequence of which would be a certain result and no evidence or explanation is given, then a jury may, on 351 1961 Sept. 29, Oct. 19, 20, Dec. 8 IOANNIS MICHAEL PEFKOS & OTHERS v. T H E REPUBLIC Zekia, J. 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, thejury should be directed that itisfor the prosecution to prove the intent to the jury's satisfaction... i " THE REPUBLIC Zekia, J. In the following page I further stated: "When the presence of intent in an attempt to commit a particular offence issought to be established the nature of the evidence must be such as to rule out all other inferences inconsistent with the presence of such intent. It is not enough in ascertaining whether a particular intent is proved or not to say that this was a reasonable inference to be drawn from the facts but one must gofurther and beabletosaythat thatwastheonlyreasonable inference which could be drawn from the facts as found; if there be another reasonableviewor probability consistent with innocence (as far as the particular charge is concerned) capable to be taken on the same facts then the onus of proving beyond reasonable doubt the existence of the particular intent has not been discharged". I still hold that this was a correct statement of the law. In the circumstances I am of the opinion that the appeal regarding conviction of attempted murder should be allowed and conviction and sentence set aside. Appeal against conviction and sentence on the count relating to armed robbery is dismissed. Coming to the appeal of appellants No. 2 and No. 3 against sentence, in the circumstances of this case and bearing in mind that the appellant No. 1 was the leading figure in the adventure, I think that their term of imprisonment should be reduced to 10years on both major counts, to run concurrently. Regarding the convictions and sentences imposed by the Court onfiveother offences, I would like to saythat when component parts of an offence constitute other offences of less gravity the correct way is to record convictions on such subsidiary offences but not to pass any sentence otherwise a Court might be taken to have punished twice a person for the same act or omission, a fact which is expressly prohibited by the Criminal Law and Constitution. 352 VASSILIADES, J.: This is an appeal against conviction and sentence bytheAssize Court of Limassol, inacase where three menattempted to hold upand rob, nor far out of the town of Limassol, the cashier of a public company carrying a bigsumof money, to thecompany's farm, for the payment of wages. 1961 Sept. 29, Oct. 19,20. Dec. 8 IOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC The cashier wastravelling in thecompany's car,a Volkswagen Station Wagon, carrying £5,000 in a metal box. He was sitting inthefront seat next tothedriver, with four other passengers, sitting at the back. The crime wascommitted early in theafternoon of a rainy day,in April last. As thecarwasproceeding on itsway, at a speed of about 30 m.p.h. (P.W.5 p. 22; P.W. 10p. 28) in a shower of rain, the driver and thecashier sawtwomenemergingfrom ahedge of cypress-trees on the side of the road, and signalling to the car to stop. Thedistance between the car and the twomen was then about 20 metres. (P.W.4, p. 19). The driver pressed on, obviously intending to disregard the signal and avoid the men,when one of the assailants, taking aim at the car, fired a revolver as the car wasgoing past him. According to the evidence he fired twice. (P.W.4 p. 19; P.W.5 p. 21). Thecarwent off fast. The glass-pane of the near side door of the vehicle,(the side on which the assailants were) was pierced by a bullet which wounded thecashier ontheback ofhis head, fracturing a bone. (P.W.5 p. 22; P.W.4 p. 20; P.W.6 p. 23). The bullet wasrecovered and wasexhibited at the trial. Police Officers, acting on information, were following the company's vehicle in two other cars. One of these officers, an Assist. Superintendent, (P.W.10) saw the two men "dashing out" from the cypress-trees on the left hand side of the road, and signalling to the company's car to stop. (P.W.10 p. 28). He then sawa third man coming out from the same spot where the first two had emerged; and it was this third man whogave to this witness the impression of firing at the company's car as it wasgoing past him (P.W.10. p.28). After theshooting, thethree menrushed back through an opening in the trees on the side of the road where they had emerged earlier, and ran towards a wire-fence, climbing over which, they tried to make their escape through an orange grove (P.W.10, p. 29). 353 Vassiliades, J. 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS V. THE REPUBLIC Vassiliades, J. The Policegave chase, and after some more firing, mostly from police-weapons now, one of the three men surrendered. It was appellant Andreas Koloshiatis (the second man in the dock). After some further chase a second gun-man gave up, and was arrested with a pistol in his hand. It was appellant Antonis Mavros (the third person in the dock). The remaining man, however, managed to get away. But before he was lost sight of, and while he looked back firing his revolver or pistol during the chase, oneofthepolice who was chasing him, recognized this third man, and called out to him to stop, mentioning his name: "Στάθου ρέΠεΟκο κι' έκατάλαβά σε" (Stop, Pefkos, I have recognized you). The distance between the police officer and the gunman was then about 30 yards. (P.W.I1p. 36). This man, Pefkos, who managed to avoid arrest in that chase, was a well known person to the police-officer who recognized him and called out to him to stop, by his name. He was also a policeman, loannis Pefkos, the first appellant in the dock (P.W.Π p. 36, 37 & 40). He was arrested shortly afterwards at some distance from the place, by other police, to whom he (the first appellant) gave a false alibi - (P.W.17, p.48). The three appellants wereicharged before the Assizes on an information containing 8 counts> The first count charged aU three appellants jointly, for attempted murder; attempt unlawfully to cause the death of the company-cashier. The second count charged, again all three appellants, for the attemptedmurder of one of the police-sergeants who took part in the chase. The third count, similarly charged them with attempted robbery ; the fourth for carrying a pistol without the required permit, contrary to the Firearms Law (Cap.57); the fifth, under the same statute, for using a pistol ; the sixth and seventh for carrying and using, respectively, "a revolver or pistol"; and the eighth for the unlawful possession of ex­ plosives, 5 rounds of ammunition, contrary to the provisions of the Explosive Substances Law, Cap. 54. All three appellants pleaded not guilty to all counts, and thecase went totrial on thatplea. They were all defend­ ed by counsel. 354 The Court heard 21 witnesses for the prosecution ; two witnesses called for the first appellant; and also heard the first appellant from the witness-box, wherefrom he elected to give evidence on oath. The other two appellants made statements from the dock, adopting the contents of their earlier detail-statements to the Police. 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS SLOTHERS v. THE REPUBLIC At the conclusion of the trial, the Assize Court gave, in a careful and well considered judgment, the reasons for which they found all three appellants guilty on all counts excepting count 2, for the attempted murder of the sergeant; and convicted them accordingly. The Court then proceeded to pass heavy sentences on the appellants, on each of the counts where there was a conviction. The first appellant, appeals against all his convictions; and he also appeals against all the sentences imposed upon him. The other two appellants, appeal against sentence only. Their convictions, therefore, stand. The convictions of the first appellant are challenged mainly on the contention that he has not been sufficiently identified as one of the three assailants. But apart of this defence of identification, it was contended on his behalf that the evidence cannot support the conviction for attempted murder, as the intent to kill was not proved. As regards count 3, the count for attempted armed robbery, I do not think that anyone can seriously say that the Court's finding cannot be supported ; the finding that the three men who tried to stop the cashier's car, in the circumstances of this case, attempted to commit armed robbery. There was ample evidence upon which the Court could make that finding; and I do not propose dealing further with this point. r As regards the other counts (counts 4-8 inclusive) the matter becomes almost purely academic. If the first appellant (to whom I shall hereinafter refer as the appellant) succeeds on the issue of identification, noneofhisconvictions can stand. If hefails on that issue, the other convictions lose their practical effect, as they are obviously of less importance than that for attempted armed robbery, (ct.3); and the sentences passed for them, far smaller in extent, are made concurrent to that passed on count 3. 355 Vassiliades, J. 1961 Sept. 29, Oct. 19, 20, Dec. 8 IOANNIS MICHAEL PEFKOS & OTHERS v. T H E REPUBLIC Vassiliades, J. I would, however, venture the view that although technically, the same set of facts may constitute more than one offences, as a matter of practice, a conviction on the most serious of such offences, renders conviction on the rest, academic; and sentence thereon unnecessary, as no person can be punished twice for the same act or omission. (Art. 12. 2 of the Const.). Such convictions and sentences are sometimes put on the record, merely in order that they be found there, in case the conviction on the more serious counts becomes inoperative. Returning now to the substance in the appeal, this can be divided in two parts: (

1. a)the identification of the appellant as one of the three assailants; and (
2. b)whether the facts as proved can support a conviction on the count for the attempted murder of the cashier (ct.l). Appellant, whowasa member of the Police Force, at the time of the crime,admitted in the witness box that hewas then stationed in Larnaca District, and that hewas living there with his wife. On the 4th April he obtained leave to absent himself from 1p.m. of the 4th April, 1961,to 20 hrs. of the 5th April, 1961 - (exh.13 - p.64 of the notes). Appellant admits that he altered the figure 5 on his leave-pass (exh.13) so as to make it appear as expiring at 20hrs. of the 6th April, instead of the 5th. He went to Limassol on the 4th April to see his brothers and friends, he said ; and he returned to Larnaca at 3 p.m. of the 5th (p. 63letter H.). But at about 7.30 p.m. of the same day, he went back to Limassol again (p. 64. B.) He stayed there for the night, and the following morning he was in his brother's grocery until about 11,he said (p.65A.) Appellant was not re-examined on all these points. He was not reexamined at all. (p. 70). I do not propose going further into appellant's evidence as to his movements at Limassol on that day, until he was arrested soon after the commission of the offence, as his story v/as disbelieved by the trial court. It is sufficient for me to say that appellant entirely denied any knowledge ofthecrime. He put up a completely false alibi, which he failed to support in the least. All that I may, perhaps, add is that in my 356 opinion, the trial court were fully justified in disbelieving the appellant, and entirely rejecting his story. (Judgment p.6 blue 82). On the other hand, again without going into detail, I may say that the trial court, accepting, as they did, the evi­ dence of the prosecution-witnesses who took part in the chase, of the three culprits, and in the arrest of the three appellants, were, in my opinion, equally justified in reaching the conclu­ sion that the first appellant was one of the three men who attempted to stop the cashier's car. (Judgment p.6 bl. 82.E). Indeed, that seems to me, the only reasonable finding, in the circumstances. The case for the prosecution was that the gunman who fired the shot which wounded the cashier, was the appellant. But the trial court did not make that finding; and it must, therefore, be assumed that the appellant was not identified with that gunman. On the other hand the Court's acceptance of the evidence of wit.3, the taxi driver engaged to take the appellants to the place where the crime was committed, establishes that the appellant sat next to him, and was directing, at least that part of the operation, while the other two appellants sat at theback(P.W.3. 14F; p. 15A-C). Moreover, the evidence of the police witnesses who took part in the chase, especially that of Sgt. Emilios Spyrou, (P.W.11 p. 36 Η; p. 37 A; p. 40 D and E) which was also accepted by the trial court, establishes that the appellant was one of the three assailants, two of whom (including the appel­ lant) held guns ; and that he fired his weapon in making his escape. The material facts, therefore, upon which the appeal against the conviction for attempted murder (ct. 1) must be decided are these:— Three men,including the appellant, attempted to stop the cashier's car with intent to rob him of a* big sum of money. Appellant and one of the other two, were armed for the pur­ pose. When the car did not stop, in disobedience totheir si­ gnal, either one or both the armed men, fired their weapons. One of the shots was fired at the side of the car as it was pas­ sing the gun-man within a short distance; and the bullet, piercing the glass-pane next to the cashier, wounded him on 357 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. T H E REPUBLIC Vassiliades, J. 1961 Sept. 29, Oct. 19, 20, Dec. 8 IOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBUC Vassiliades, J. the head, fracturing a bone. The cashier was sitting in the front seat, near thedriver, on the sidewhere the gun-man was, when he fired the wounding shot. On these facts the question which falls for decision is:Assuming that the appellant was not the gun-man who firedthewounding shot, washerightly convicted of attempted murder? For thepurpose of answering thisquestion, one must first answer the question whether, on the evidence before them, the trial court could find attempted murder. In other words, whether they couldfindthat thegunman whofiredthe woundingshot, committed inthecircumstances,thecrimeof attempted murder. In our Criminal Code (Cap. 154) this crime comes under sect. 214which asfar as material to thecasein hand, provides that any person who attempts unlawfully to cause the death of another, or with intent to so cause the death of another, does something which is likely to endanger human life, is guilty of the felony of attempted murder, and isliabletoimprisonment for life. So the intention to cause the death of another is a necessary ingredient of the offence ; and must be established by the prosecution to the satisfaction of the Court, beyond reasonable doubt. But intention, in most cases, is a matter of inference. It is aTact which the Court has to find from a person's conduct at the material time, in the surrounding circumstances. In Reg. v.Smith (19603W.L.R., p.92)wheretheCourtof Criminal Appeal in England, had to consider the trial Judge's direction to the jury in a murder case where the appellant's intent at the material time, was one of the main issues, the legal maxim that "a man must be taken (or be presumed) to intend the natural consequences of his acts", was discussed. The trial Judge referred to this maxim in the following terms:"The intention with which a man did something, can usually be determined by a jury, only by inference from the surrounding circumstances, including the presumption of law that a man intends the natural and probable consequences of his acts". 358 The Court of Appeal took the view that addressing ajury of laymen, the trialjudge should explain to them the meaning and effect of this legal presumption. And then the Court proceeded to state the law as follows:"The law on this point as it stands to-day, is that this presumption of intention, means this : that as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But while that is an inference which may be drawn, and on the facts in certain cases must inevitably be drawn, yet if on all the facts of the particular case it is not the correct inference, then it should not be drawn". With all respect, 1 take this as a careful and correct statement of the law on the point. In the case in hand, thetrial Court had to find the intent of the three appellants, not only in connection with the count for attempted murder, (ct.
3. l)but also in connection with the count for attempted armed robbery (ct.3). On this latter count, the Court found, from the conduct of the appellants at the material time,that their intention was to commit the crime of armed robbery ; i.e. the Court found the mens rea required to establish the attempt charged. Furthermore, from appellants' conduct in the series of acts ending with the attempt to stop the cashier's car, the Court found the actus reusrequired to complete the crime charged. On thesefindingsthe Court convicted all three appellants for attempted armed robbery. And, as I have already said, in my opinion, that conviction cannot, seriously, be challenged, in this case. Now coming to the count for attempted murder (ct.l), the Court had similarly to find from the conduct of the gunman who fired the wounding shot, the mens rea and the actus reus required to establish the attempt charged. The Court had to find the mens rea, i.e. the intent to cause the death of another, required by sect. 214; and, furthermore to find the actus reus necessary to establish sufficiently in law, the crime of attempted murder charged. The carrying of the revolver in those circumstances might beanact indicatingan intenttocausedeath ; but itwould not, 359 1961 Sept. 29. Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC Vassiliades, J. 1961 Sept. 29, Oct. 19, 20, Dec 8 lOANNIS MICHAEL PEFKOS & OTHERS in itself be an actus reussufficient to establish an attempt to kill. Similarly the loading of the revolver might be a step further in carrying out the intent to causedeath ; but it might again fall short of constituting the actus reus required to establish the crime under s.214. v. T H E REPUBLIC Vassiliades, J. But the gunman in this case did not stop at the carrying of a loaded revolver. He showedwhatwashis"intent"inso carrying it, when, seeing that the car did not obey the signal to stop, the gunman raised hishand, aimed at the car as it was passing within a few paces from him, and pulled the trigger welt knowing that that would cause a bullet to hit the car more or less at the part aimed at, that is to say at the glass of the side-door, behind which the cashier (or another person of his party) was sitting. There was no suggestion at the trial that the person sitting near the glass-window could not be seen. That same person (the cashier, P.W.4) was asked by counsel for the appellant, incross-examination, todescribe the gunman's moustache. In fact a bullet did go out of the gunman's weapon, as intended, and piercing the glass-window, wounded the cashier on the head. Surely, if the cashier died in consequence of that wound, the killing would amount to murder; causing the death of another with intent. The trial court found from the series of the gunman's acts ending with thepullingofthe trigger,in the circumstances, both, the mens rea required by sect. 214, and the actus reus sufficient to establish the attempt, as required by law. The conviction on the count for attempted murder - a unanimous conviction by a court of three legally qualified and experienced judges - to me clearly indicates that the evidence satisfied the court, beyond reasonable doubt, on both elements of the crime. In.my opinion, this Court can only set aside that conviction, if the Court is prepared to hold that the firing of the weapon, in the circumstances, cannot reasonably lead to the conclusion reached by the trial court. That isto say, thatihe trial court could not reasonably find an intention to cause death, in the act of an armed robber, firing his weapon at his intended victim from a close position, in the circumstances shown by the evidence in this case, andactuallywounding the victim on the head. 360 1findmyself completely unable to share such view of the facts. Nay, I may add that I cannot see how the trial court could reasonably reach any other conclusion, as to the crime committed by the gunman who fired the wounding shot. I must now deal with the position arising from the fact that the gunman was not indentified. And dealing with the appeal of the first appellant, to assume that he wasnot that gunman. On this footing the appellant can only be convicted, if found by the trial court to have been "a party" to the crime committed by the non-identified gunman. Our law on the point, is to be found in Part I of our Criminal Code (Cap. 154) sections 20 to 25 incl., under the heading "Parties to Offences". As far as material to the case in hand, sect. 20 provides that "when an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it" I lay stress on the words which / persons are:- have underlined. These "(
4. a)"(
5. b)every person who does or omits to do any act for the purpose ofenabling or aidinganother person to commit the offence; '(
6. c)every person who aids or-abets another person in committing the offence; '(
7. d)J And section 21 provides that "when two or more persons form a common intention to prosecute an unlawful purpose, in connection with one another, and in the prosecution of such purpose an offence is committed, of such nature that its commission was a probable consequenceof the prosecution of such purpose, each of them is deemed to have committed the offence". These provisions, same as most of our Criminal Code, 361 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS V. THE REPUBLIC Vassiliades, J. 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS V. THE REPUBLIC Vassiliades, J. have their origin in the common law of England, from which they derive. So in reading and applying them, we should look for assistance, whenever necessary, in cases where the Courts in England have stated and applied the Common law, as it developed in that country. Dealing with the conviction for attempted murder at this stage, I do not think that it is necessary for me to go back to the facts which led to the conviction for attempted armed robbery. I shall start from that point. The trial court found that all three appellants went to the spot where the attempted murder was committed, for the purpose of committing an armed robbery; they were there in order to rob the company's cashier on his way to the farm, with a big sum of money ; two of them, including the appellant were carrying for that purpose, loaded firearms; one of them a pistol the other a revolver. I do not think that any one can suggest that there was no evidence to support these findings. The trial court further found that " The fact that two of them were also armed as they were, to the apparent knowledge of all three, and that when the car of the complainant did not stop, shots were fired at it, shows that it was the intention of the accused to use violence in furtherance of this common design" (Vide judgment at p.83 of the notes). 1 do not think that it can be suggested that there was no evidence to support this finding either ; or that it was unreasonable, in the circumstances. Now, what sort of violence does a robber contemplate, when armed with a loaded revolver, in a case such as this, is not, in my opinion, a difficult question for any Court in Cyprus to answer. And I do not propose going further into this matter. I have already stated the reasons for which, I think that the trial court were right, in holding that the gunman who fired the wounding shot, committed the crime of attempted murder. What falls to be decided at this stage, is whether the first appellant, being one of that gunman's two companions, was a party to that crime ; or he isdeemed to have committed it, under the provisions of sections 20 and 21 of our Criminal 362 Code. The fine technical distinction between the two is of no practical effect in this case, and 1do not propose going into that matter. Whether appellant's conduct at the material time, i.e. the time when his non-identified companion committed the attempted murder, amounts in law, to aiding and abetting the commission of that offence (s.20 (c)); or whether the attempted murder was a probable consequence "in the prosecution" of the common intention to commit armed robbery, (sect.21), the practical result is the same. The appellant is deemed to have committed the offence, and may be charged and convicted accordingly. The facts of the case point rather in the direction of the second alternative, and I shall approach the question from that side. Now, there can be no doubt that a "conspiracy" (within the meaning of the word in criminal law) to commit armed robbery, has been established in this case; and that the trial court, on the evidence before them, could treat each one of the appellants as a party to that conspiracy although not charged. It has been said in this case, that in firing at the persons in the car, the non-identified conspirator went beyond the scope of the common purpose of robbing the cashier. But Ido not think that such a view of the factscanstand wellthe test of reason. Who can say that the three conspirators did not intend to use their lethal weapons in order to cause death, ifthey found it necessary to do so,for the purpose of carrying out that robbery? Or for the purpose of avoiding arrest? Is there anything- in the facts of this case to point in that direction? In my opinion, the facts as proved, point strongly in the opposite direction." But even assuming that the non-identified gunman had promised the other two conspirators (including the appellant) that he was not going to use his loaded revolver for causing death ; would that be sufficient, either in common sense, or in the common law, to exculpate the appellant from complicity in his companion's attempted or completed murder, if the latter had committed one, contrary to his promise? The answer to this question is not a difficult legal problem. Professor Glanville Williams in his well known textbook on the Criminal Law deals with this matter in paragr. 363 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC Vassiliades, J. 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC Vassiliades, J. 65, at p. 215 et seq. under the heading: "Acts beyond the scope of the common purpose". After citing a passage from the Judgment of Lush, J., in Caton's case

(1874), and after discussing Beits and Ridley (

1. Cr. App. R. 148),and Appleby's case (28 Cr. App. R. 1) the distinguished author concludes with this statement: "Notwithstanding the language of the judgment, an agreement to use violence does not implicate the principle in the second degree, // the violence used is altogether different in kind,from that agreed". I have underlined the last part of the statement which, in my opinion, clearly leads to the result that if the violence used is of the same nature as that agreed or contemplated, the common law implicates all the conspirators. In Appleby's case, (supra)the Court of Criminal Appeal in England, after reviewing earlier cases on the point, dismissed the appeal against conviction for murder where the trial judge directed the jury that:"It is not the law that if Appleby did not know at the outset that Ostler (the other conspirator) had taken agun with him, he cannot be guilty". "I tellyouthat thisistheway inlaw(thejudge directed) the matter is put and urged, against Appleby: If you are satisfied that these two men werejointly engaged on this felonious enterprise, of breaking and entering the cooperative premises in order to steal, and were united in a common resolution to resist by violence any constable who should oppose them, and the shot was fired at the constable by one of them, in pursuance of that common resolution, and killed him, that is murder, and both are liable to be found guilty of murder". I find it unnecessary to carry the point further. The inference of fact that the thiee appellants in this case (including the non-identified gunman) shared the common purpose of using their lethal weapons for the armed robbery, is clearly, I think, unavoidable. And the legal consequence of that position is,just as clearly, in my opinion, that if one of them, while so using his weapon, committed another crime involving violence of similar nature, such as murder or attempted murder, the other two are deemed to have taken 364 part in the commission of that offence, by operation of sections 20(c)and 21 of our Criminal Code, and may be charged with actually committing it. 1961 Sept 29, Oct. 19, 20, Dec. 8 Ordinary good sense, concerned with public safety, and the suppression of crime, would clearly, I think, have it that way; the Common Law, originating in good common sense, has it that way; and our codified law in the form of sections 20and 21of the Criminal Code, emanating from the Common Law, provides that each of such persons is deemed tohave committed the offence, actually committed by his mate. lOANNIS MICHAEL PEFKOS & OTHERS Persons choosing to take part in crimes suchasthe subject matter of this case, must realise that they draw upon them all the·risks which may result from such expeditions. And they should further know, that the law in such matters, does not require the Court to enter into speculations, as to what exactly was the agreed violence ; or as to where the violence for the one crime ended, and that for the other crime commenced. Upon these considerations, I reach the conclusion, without any difficulty or hesitation, that the answer to the. question whether the first appellant can be convictedof the attempted murder committed by his non-identified companion, must be in the affirmative. And that the Assize Court were right in their view of the law upon which they convicted all three appellants on the first count. Appellant's conviction on counts 4-8 incl., are, as I have already said, merely incidental, and I do not propose dealing with them. They are of purely academic effect. As regards, now, the appeals against sentence, after discussing the matter with the other members of the Court, I found myself in agreement with the view that the second and third appellants stand on a different footing from that of the first appellant. He was apparently the leader ; and the fact that he was, at the time, a policeman, makes his position as regards sentence, far worse. I agree that the sentences of the second and third appellants, are manifestly excessive, in the circumstances; and should be reduced to ten years imprisonment on each of these counts (1 &3)to run concurrently from conviction. I would pass no sentence on the other counts. And as far as the first appellant is concerned, I should say that a sentence of 14 years on each of the two principal counts to run concurrently 365 v, THE REPUBLIC Vassiliades, J. 1961 Sept. 29, Oct. 19,20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS V. T H E REPUBLIC Josephides, J. from conviction, would be an adequate sentence for this appellant. JOSEPHIDLS, J.: 1propose dealing first with the appeal of the first appellant against his conviction on count 1, i.e. attempted murder contrary to sections 214(a) and 20 of the Criminal Code. Theappeal of theother appellants isagainst sentence only. The facts asfound bytheAssizeCourt are, briefly, that as the cashier of a company was travelling in a car, carrying £5,000, three men attempted to hold up and rob him. The cashier was sitting in the front seat next to the driver and there were four other ·passengers sitting at the back. As the car wasproceeding from Limassol to Fassouri, at a speed ofabout 30to35milesperhour,inheavyrain,twomenemerged from a hedge of cypress-trees and signalled to the car to stop. They were then joined by a third man. Two of them (including the first appellant) were armed. The driver did not stop and two shots were then fired from a pistol or revolver when thecarwaslevelwiththese men. Thewindowpane next to the cashier was smashed by a bullet which hit and wounded himontheback ofhishead, fracturing hisskull. The gunman wasabout 11feet away when hefiredat thecashier in the moving car. The three appellants were chased by the Police (who were following the complainant's car), and two of them were arrested nearby. They were the second and third appellants whoadmitted taking part inthis incident. The first appellant was arrested shortly afterwards at some distance from the scene of the crime. His defence was one of alibi, but the Assize Court found that he was one of the three assailants, and there was ample evidence before the Court to support that finding. On those facts theAssizeCourt found allthree appellants guilty of attempted murder (count 1),as well as of attempted armed robbery (count 3). The trial Court did not make a finding as to whoof thethree assailants fired thebullet which wounded the complainant; but they found that the firing was done in furtherance of a common design. In a charge of attempted murder the intent to kill isthe principal ingredient of thecrime. This waslaid down in the case of R. v. Whybrow,35Cr.App.R. 141,andwas followed by this Court in the case of Nicolas GeorghiouKkolis v. The 366 Republic, Criminal Appeal No. 2291,dated the 29th March,
2. In the Whybrowcase the Lord Chief Justice, at page 146 said: "In murder thejury is told - and it has always been the law - that ifa person woundsanother orattacks another either intending tokill orintending to do grievous bodily harm, and the person attacked dies, that is murder, the reason being that the requisite malice aforethought, which is a term of art, is satisfied if the attacker intends to.do grievous bodily harm. Therefore, if one person attacks another, inflicting a wound in such a waythat an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there isthemalice aforethought sufficient tosupport thecharge of murder. But,if the charge isone of attempted murder, the intent becomes the principal ingredient of the crime. It maybesaid that thelaw,which is not always logical, issomewhat illogical insaying that, ifone attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intent to do grievous bodily harm". The burden of proving the intent is on the prosecution. Lord Goddard in R. v. Steane

(1947)K.B.997at page 1004 said:"While no doubt the motive of a man's act and hisintention in doing theact are,in law,different things, itis, none the less true that in many offences a specific intention is a necessary ingredient and the jury have to be satisfied that a particular act wasdone with that specific intent, although the natural consequences of the act might, if nothing else were proved, be said to show the intent for which it wasdone. To take a simple illustration, a man is charged with wounding with intent to do grievous bodily harm. It is proved that he did severely wound the prosecutor. Nevertheless, unless the Crown 367 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC Josephides, J. 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS V. T H E REPUBLIC Josephides, J. can prove that the intent was to do the prosecutor grievous bodily harm, he cannot be convicted of that felony. It is always open to thejury to negative by their verdict the intent and to convict only of the misdemeanour of unlawful wounding. Or again, a prisoner may be charged with shooting withintent to murder. Here again, the prosecution may fail to satisfy the jury of the intent, although the natural consequence of firing, perhaps at close range, would be to kill. Thejury can find in such a casean intent to do grievous bodily harm or they might find that if the person shot at was a police constable, the prisoner was not guilty on the count charging intent to murder, but guilty of intent to avoid arrest. Tne important thing to notice in this respect is that where an intent ischarged in the indictment, the burden of proving that intent remains throughout on the prosecution. No doubt, if the prosecution prove an act the natural consequenceofwhich would bea certain resultand no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner isentitled to be acquitted". This was no doubt a special case dealing with broadcasting in an enemy country with intent to assist the enemy; but the principle enunciated by Lord Goddard was evidently not then intended to be restricted to such cases. It was argued on behalf of the prosecution that on the authority of the recent case of Reg. v. Smith

(1960)3 W.L.R. 92, intention can usually be determined inferentially from the surrounding circumstances, including the presumption of law that a man intends the natural and probable consequences of his acts. But it should be borne in mind that the Court of Criminal Appeal in that case were considering the summingup of the trial Judge in a case of murder. The House of Lords subsequently restated that proposition in the following terms (D.P.P. v. Smith

(1960)3 W.L.R. 546, at p. 547): 368 "It is immaterial what the accused in fact contemplated astheprobable result of hisactions, provided he isin law responsible for them in that he is capable of forming an intent, is not insane within the M'Naghten Rules and cannot establish diminished responsibility. On that assumption, the sole question is whether the unlawful and voluntary aci wasof such a kind that grievous bodily harm was the natural and probable result and the only test of this is what the ordinary responsible man would, in all the circumstances of the case, have contemplated as the natural and probable result. Once the accused's knowledge of the circumstances and nature of his acts has been ascertained, theonly thing that can rebut the presumption that heintends the natural and probable consequences of those acts is proof of incapacity to form an intent, insanity or diminished responsibility. The test of the reasonable man, properly understood, is a simpler criterion than that of the"presumption of law" and contains all the necessary ingredients of malice aforethought". Unless the House of Lords has by inference overruled the existing authorities, a man cannot beconvicted of woundingwith intent to murder, unless hisattitude of mind was such that he intended to kill. Smith's case does not overrule Steane's case, but distinguishes it on the basis that the principle restated in that authority (R. v. Steane) is confined to cases in which an actual or overall intent or desire has to be ^proved (D.P.P. v. Smith, supra, at page 558). Such cases do not include cases of murder, but they are confined to cases like R. v.Steane, and casesof attempted murder,or wounding withintent to murder, suchas R. v. Whybrow,where the intent is the principal ingredient of the crime. Where on a true construction of a statute "intent" equals "desire" or "purpose", as in the case of attempted murder, or wounding with intent to do grievous bodily harm, then the rule laid down by Lord Goddard in R. v. Steane would be applicable, i.e. "if, on a review of the whole evidence (the jury) either think the intent did not exist or they are left in doubt as to theintent, theprisoner isentitled to be acquitted". (

(1947)K.B. p. 1004). As Lord Denning (a member of the House of Lords in the Smith case) said recently, there is nothing illogical or inconvenient about interpreting 'intent' 369 1961 Sept. 29, Oct. J9, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC Josephides, J. 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. T H E REPUBLIC Josephides, J. in some statutory offences to mean desireor purpose whereas in murder cases it means not only desire or purpose but includes an intentional act done with knowledgeof the probable consequences. ("Responsibility before the m w " by Lord Denning

(1961), page 28). To sum up,intent to killin a charge of attempted murder is the principal ingredient in the offence, and the burden of proving that intent remains throughout on the prosecution. In this case the record shows that the trial Court did not direct their mind to the question of intent. In fact there is no finding of the Court in their judgment on this point. On the totality of the evidence in this case there is room for three or four views as to the intent of the assailant in firing at the complainant, namely (a)an intention to frighten the occupants of the car; (

1. b)an intention to stop the car; (
2. c)an intention to wound or do grievous bodily harm; or (
3. d)an intention to kill. As it isfor the prosecution to prove the intentto the Court's satisfaction, and as on a review of the whole evidence, the Court would be left in doubt as to the intent, the appellant is entitled to be acquitted of the charge of attempted murder (although on the evidence he may be convicted of some lesser offence). Having reached that conclusion it is unnecessary for me to consider whether the firing was so much the result of a common purpose that all three accused were in law guilty of an attempt to murder. For the reasons stated above, and having regard to the convictions of the first appellant on the other counts, which must beaffirmed, I would set aside hisconviction of attempted murder on count 1, without ordering a retrial or considering whether he should be convicted of any lesser offence. With regard to the first appellant's conviction of attempted armed robbery on count 3,1 would only say that there was ample evidence on which the trial Court could find him guilty of the offence charged. As to counts 4, 5, 6, 7 and 8, i.e. the charges of carrying and using a pistol and a revolver, and possessing rounds of ammunition, although technically the first appellant is guilty on those charges, nevertheless, as the same facts and circumstances formed part and parcel of the attempted armed robbery charged ofwhich hehas beenconvicted and sentenced 370 I consider that no sentence should have been passed upon those counts (Cf. Article 12,paragraph 2, of the Constitution, and section40,sub-section

(3),ofthe Criminal Procedure Law, Cap. 155). In the result the appeal of the first appellant on count 1 is allowed, and his conviction and sentence set aside. His appeal on all other counts is dismissed, and his convictions affirmed. Now, as to sentence : The first appellant was sentenced to fourteen years' imprisonment on the attempted armed robbery (count 3). Considering the circumstances of this case, the fact that this appellant was a police-constable and the audacity with which this crime was carried out, I do not consider that the sentence is excessive. The second and third appellants were sentenced to eighteen years' imprisonment on the charge of attempted murder (count 1) and to fourteen years' imprisonment on the attempted armed robbery charge (count 3). Having regard to the circumstances of this case, and considering that they played a lesser role than that of the first appellant in the commission of the crime, I think that those sentences are manifestly excessive and should be reduced to ten years' imprisonment on each count to run concurrently. As stated earlier in this judgment, no sentence should have been passed on counts 4 to 8 on any of the appellants, and accordingly those sentences against the appellants should beset aside. 0' BRIA1N, P.: In the result this Court by majority in the case of Pefkos allows the appeal against conviction on count 1,andsets theconviction andsentenceaside. TheCourt unanimously dismissestheappealagainstthe otherconvictions. As regards Pefkos's appeal against sentence on count 3,the Court dismisses the appeal and allows the appealagainstsentence on remainingcounts and sets same aside. As regardsthe other two appeals(2397 and 2398)against sentence, the Court unanimously allows the appeals and reduces the sentences to ten years' imprisonment on each of counts 1 and 3 and sets aside the sentences on theremaining counts. The sentences in all cases are to run concurrently from the date ofconviction. 371 1961 Sept. 29, Oct. 19, 20, Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. THE REPUBLIC Josephides, J.