1961 Sept. 29, Oct. 19, 20," Dec. 8 lOANNIS MICHAEL PEFKOS & OTHERS v. fO' B R J A I N , P., Z E K I A , VASSILIADES and .TOSEPHIDBS. J.T.] l O A N N I S MICHAEL P E F K O S AND OTHERS Appellants, v. THE REPUBLIC THE REPUBLIC Respondent. {Criminal Appeals Nos. 2396, 2397 and 2398). Criminal law—Attempted murder—The Criminal Code, Cap. 154, section 214(a)—Actual intent to kill is a necessary ingredient of the offence—Intention merely to use violence or to inflict grievous bodily harm, not sufficient—Notwithstanding that if death were toresult, theperpetrator could have beenfound guilty of murder— Intent to kill as distinct from "malice aforethought"—Sections 204 and 207 of the Criminal Code, Cap. 154, prior to the amending Law No. 3 of 1962—"Malice aforethought" comprises many instances outside actual intent to kill. Intent to kill—Must be proved—Usually inferred as a fact from surrounding circumstances of each particular case—Burden of proof being throughout on theprosecution—Intent to kill must be the only reasonable inference—The presumption of law "a man must be taken or presumed to intend the natural consequences of his acts"—Meaning and scope—"Overall intention", "actual intent" or "desire ot purpose". Parties to crime—Common sections 20 aud 2 1 . design—Criminal Code, Cap. 154, Sentence—Several- offences charged—Where accused is found guilty of several offences and the component parts of the heavier offence form part and parcel of the other offences of less gravity, the correct course is to record convictions on the lesser or subsidiary ones but not to pass sentence on them—Sentence on the heavier offence sufficient—Otherwise the principle that a person should not be punished twice for the same ad or omission would be offended—Which is against Article 12, paragraph 2, of the Constitution, section 19 of the Criminal Code, Cap. 154 and section 40{3) of the Criminal Procedure Law, Cap. 155. The appellants waylaid the car of a company in order to rob its cashier who was travelling in t h a t car a n d carrying with him a considerable amount of money. On seeing the car approaching the place where the appellants were hiding themselves, two of them emerged therefrom and signalled 340
(2)(
- a)Section 205 of the Criminal Code as enacted provided in express terms for the penalty of death in all cases of murder. (
- b)The decision of the Supreme Constitutional Court in the case of Loftia (Application No. 8/61) is to the effect that "section 205of the CriminalCode,Cap. 154,tothe extent to which it provides for death penalty for murder other than premeditated was inconsistent with Article 7, paragraph 2, of the Constitution". (
- c)In so far as the section provides that any person convicted of premeditated murder shall be sentenced to death, no conflict with the Constitution arises and in that sense the section is not unconstitutional.
(3)The trial Court is entitled to use against the accused any part of his evidence which in their view istrue and points to his guilt. Appeal dismissed. Conviction and sentenceaffirmed. Cases referred to: The Republic and Nicolas PantopiouLoftis, Application No. 8/61, 1 R.S.C.C. 30; Loftis v. The Republic, reported in this volume, p. 108ante; Mancini v. D.P.P.
(1941)3 All E.R. 272; Woolmingtonv. D.P.P. 25 Cr. App. R. 72; R. v. Stearic
(1947)1All E.R. 813; R. v. Hopper 11 Cr. App. R. 136. Appeal against conviction. The appellant was convicted on the 20th November, 1961 at the Assize Court of Kyrenia (Criminal Case No. 1350/61) on one count of the offence of murder contrary to sections 204 and 205 of the Criminal Code, Cap. 154, read in conjunction with Article 7, paragraph 2, of the Constitution and was sentenced by Stavrinides, P.D.C., Evangelides and Ioannides, D.JJ. to death. L. derides with K. Saveriades for the appellant. A. Francos for the respondent. Cur. adv. vult. 441 1961 Dec. 12, 13, 19 GEORGHIOS T H . KALLE v. T H E REPUBLIC 1961 Dec. 12, 13, 19 GEORGHIOS Τ Η . KALLI v. THE REPUBLIC The facts sufficiently appear in the judgment of the Court which was delivered by> O' BRIAIN, P.: In this case the appellant was convicted by the Assize Court of Kyrenia of the premeditated murder on the9th day of July, 1961,of one Andreas Pavlou Kyriacou, and was sentenced to death for the said crime. His appeal to this Court against thatconviction is based on eight grounds. Ground 1 raises a matter of law of considerable impor tance and is in the following terms: "That in the absence of the enactment of a Law as pro vided for in Article 7.2 and 3 of the Constitution the sentence of death passed on the appellant on a count of premeditated murder is illegal and/or invalid and/or of no effect". The information put on the record of the Assize Court was in the English language and in the following terms: "Statement of offence". "Premeditated murder contrary to sections 204 and 205 of the Criminal Code, Cap. 154 read in conjunction with Article 7, para. 2, of the Constitution". "PARTICULARS OF OFFENCE : The accused on the 9th day of July, 1961, at locality "Landa tou Shirou' in the territory of Ayios Amvrosios in the District of Kyrenia, did of malice aforethought amounting to pre meditation, to wit, an intention to kill, cause the death of one Andreas Pavlou Kyriacou, of Khartzia by an unlawful act, to wit by shooting". The argument of Mr. Clerides was that Article 7
(2)of the Constitution requires "a law which should provide expressly for the death penalty in cases of premeditated murder" and he submitted that no such law has been enacted by the Legis lature of the Republic andconsequently thesentenceof death passed on the appellant was illegaland/orinvalid and/orof no effect. The Court is unanimously of opinion that this ar gument is based on a misconception and that this ground of appeal is of no substance. Inour opinion,theCriminalCode, section 205, as enacted provided in express terms for the pe nalty of death in all cases of murder. That Statute was enact ed in the year 1929. The Constitution of Cyprus came into 442 effect on the 16th August, 1960, and Article 7, paragraph 2 thereof provided as follows: "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 incases of premeditatedmurder,high treason, piracy jure gentium and capital offences under military law". The constitutionality of section 205, having regard to Article 7, paragraph 2, of the Constitution,has been referred by this Court to the Supreme Constitutional Court and was considered by them in the case of Nicolas Pantopiou Loftis, Application No.8/61,(TheRepublic andLoftis I R.S.C.C.30). The decision of the Supreme Constitutional Court on the question reserved is perfectly clear. It is to the effect that "Section 205 of the Criminal Code Cap. 154 to the extent to which it provides for the death penalty for murder, other than premeditated murder, was (sic) inconsistent with Article 7
(2)". But it is clear from thejudgment delivered by Fortshoff, P.,that, in so far as the section provides thatany person convicted of premeditated murder shall be sentenced to death no conflict with theConstitution arises and that,in that sense, the section is not unconstitutional. In my view this is a complete answer to the first ground of the appeal. In this connection I may say that the Court has observed that Counsel appearing for the Republic appears to have difficulty in deciding how properly to frame the count for premeditated murder and that in different cases widely differ ing forms have been used. It may be of assistance to the Bar generally if we were to indicate that in our view at present and until such time as hew legislation on the point shall be enacted, a count in the following lines will suffice : "State ment of Offence. Murder contrary to sections 204 and 205 of the Criminal Code, Cap. 154". "Particulars of Offence. The accused did on the day of at of malice afore thought and with premeditation kill A.B." This English terminology will also conform as closely as possible to the terminology of the Greek and Turkish texts of Article 7, paragraph 2, of the Constitution where the words "φόνος" and "Katil" are used respectively, where the English text uses "murder". 443 1961 Dec. 12. 13. 19 GEORGHIOS Τ Η . KALLI V. THE REPUBUC 1961 Dec 12, 13, 19 GEORGHIOS Τ Η . KALLI v. T H E REPUBLIC The second ground of appeal is set out in terms which we have had difficulty in understanding. It reads: "The Hon. Court has failed to apply the principles laid down in the cases of: Mancini v. D.P.P.
(1941)3 All E.R.
- Woolmingtonv. D.P.P. 25 Cr. App. R.
- R. v. Steane{mi) 1All E.R.
- R. v. Hopper II Cr. App. R.
- as regards the sufficiency of evidence and/or the burden of proof required under the circumstances". Mr. Clerides argued that thejudgment of the court shows that the learned Judges tried the case as they would a civil case and gave their verdict upon the preponderance of pro babilities. We have carefully read, morethan once,theentire judgment and fail to find any justification for this grave and far reaching criticism of the conduct of the trial judges. It has already been laid down by this Court, in a recent case, that this Court will impute to the Judges a full and accurate knowledge of the law, unless the contrary appears upon the record. In this case three experienced members of the Ju diciary, though they had differed on a point of law during the course of thetrialwere unanimousinconvicting andused these words in the second last paragraph of their judgment "having carefully and anxiously considered every aspect of this grave case, we are satisfied that the accused arranged.. We reject entirely the contention of Mr. Clerides that because they did not add after the words "satisfied" the phrase "be yond any reasonable doubt" this shows that they fell into the fundamental error of trying a charge of premeditated murder, carrying with it the penalty of death, on the same footing as an action arising out of a street collision or for a shop goods debt. The remaining six grounds of appeal may conveniently be dealt with together as they relate to details of evidence, findings of fact and inferences to be drawn from them. We have listened with attention to what Mr. Clerides has urged in support of these grounds. We think we can best answer and deal with all his submissions by stating briefly what 444 appears to have been established to the satisfaction of all three trial judges upon evidence properly admitted and in a case where we have failed to find any misstatement of law in thejudgment or intherulings made by theCourtin thecourse of the trial. In this connection I would emphasize that the accused chose to call evidence and to give evidence himself upon oath. Thereis nodoubt thatthetrial courtwas entitled to use against the accused any part of that evidence which in their view was true and pointed to his guilt. The salient facts may be summarised briefly as follows: The body of the deceased young man was discovered on the 11th July last at a place called "Landa tou Shirou", a remote and lonely spot between the villages of Ayios Amvrosios and Khartzia. He lay onhisback andhad apparently been dead for some time. Two gunshot wounds inflicted at close range were found on the body; onewas caused by pellets hitting the deceased in the area of the sternum (breast bone), from the sternum to thejaw, and the other a frightful wound in the back of thehead involving the deep tissues of the brain was caused by jagged pieces of metal which had been filled into a cartridge in place of pellets. Either of the wounds of itself would have caused almost instantaneous death. Both were fired from the"pistola" producedinCourt. Thefactthat the body bore two fatal wounds precluded thepossibility of the deceased having caused both with that "pistola". One, the first,in point of time, might have been caused by the deceased if thedeceased had the"pistola" and in a strugglewithanother person accidentally or otherwise discharged it hitting himself. This matter was considered by the trial court. The main evidence on the point was that of the accused himself. We now know from him that he alonewas presentatthespot with the deceased when the deceased met bis death. We know, too, that he used the weapon that caused both these wounds, though he only admits firing the second of the two shots and then for the purpose of self-defence. At different times he gave accounts differing significantly in detail,of whathappen ed between him and the decased. Some are statements to the Police, one a conversation with his own mother and the last on oath in the witness box. With regard to this account and the defence based upon it the learned Judges have this to say 'We are satisfied that the deceased neither 445 1961 Dec. 12, 13,19 GEORGHIOS Τ Η KALLI V. THE REPUBLIC 1961 Dec. 12,13, 19 GEORGHIOS TH. KALLI v. THE REPUBLIC attacked nor provoked the accused at any time between hisleavingKhartzia andhisdeath ; that theaccused shot the deceased withthe"pistola"twiceandthatthe deceased died as a result of such adeliberate attack on him bythe accused". This, if itmeansanything, means that thedeceased wasmurdered andthathisslayerwastheaccusedand thathisevidence exculpating himself was rejected by all threejudges. There still remains to beconsidered the question ofpremeditation. Therewasevidenceof motiveon the part ofthe accusedtoattackthedeceased. He,theaccused,hadbecome engaged to a young girl in the deceased's village. He had seduced her and then found she was not virgo intaaa and was told, as a result of enquiries he made of her, that she had been raped by the deceased. It has been suggested by Mr. Clerides that that would scarcely be likely to cause resentment towards the deceased on the part of the accused. I can only say for myself that I can hardly conceive of any matter more likely to lead to violence between two young men circumstanced as were the accused and the deceased, Thematter doesnot rest there. Thereisnoevidencethat the deceased ever owned a firearm. It is true that there is no direct evidencethattheaccused owned the "pistola". One or other of them brought the "pistola" on thefatal eveningto "Landa tou Shirou" and with it the ammunition which I have described. The accused, on his own admission, loaded it and usedit at leastonce,firingon that occasion atthehead of the deceased and inflicting the head wound which I have mentioned. After the murder he takesthe "pistola," carefully wraps it up in a plastic bag, ties or binds the bag, puts away the weaponinasecretplace. LaterhebringsthePolicetowhere the gun isand says to the Police Officer "This is the gun, Sir, which I wrapped up to avoid its being destroyed by earth". Can one wonder that the Court drew the inference that that was the act ofan owner dealing with his own property? If the "pistpla" that was brought to 'Landa tou Shirou' and slewthedeceasedonthatfatal eveningwasintruth thegunof theaccused,whatisleft ofhiscasethat thiswasnotaplanned murder? Onefinalpiece of evidence requires mention. To 446 the Police Officer he used a significant phrase - "in any event Mr. Frangos, what happened was on account of my honour". Tohismother hisopening words were"I did itfor my honour. If he was not killed I would have been killed". These facts, each of them, in our view, supported by legalevidence,justifiedthe trial Judges who had the duty and function ofjudging of the credibility of witnesses and ascertaining the facts and drawing inferences from proven facts in coming to the conclusion, as they did, that Andreas Pavlou Kyriacou was shot down by the accused with the "pistola" that was produced in evidence ; that he, Andreas Pavlou Kyriacou, was neither attacking nor provoking the accused and that the latter had acted with deliberation to avenge what he believed had been done to Panayiota Andreou who, on the admission of the accused himself, was the object of his lust. We dismiss this appeal and affirm the verdict and sentence of the trial court Appeal dismissed. Convictionand sentence affirmed. 447 1961 Dec. 12,13, 19 GEORGHIOS T H . KALLI v. T H E REPUBLIC