clr/1971/1971_2_40.pdf

(1)(b) proviso. Burden of proof—Rule applicable—Prosecution must prove the charge beyond reasonable doubt—Defence evidence—Consideration and evaluation of—Test applicable—"Probability" test—"The reasonable possibility" test—Apart from particular words or embellishments it is sufficient for the defence to raise a doubt. Defence—Evidence for the defence—Right approach of the Court— Sufficient for the defence to raise doubt. " Compartmentalization" or "fragmentation" of the evidence— Allegation of such "compartmentalization" not sustained—The trial Court on due considerationof the evidence asa whole,having reached at the end of the case the conclusion that there was no room left for a reasonable doubt as to the guilt of the prisoners. Judgments—Summing-up—The Court of Appeal should not look at judgments of criminal Courts minutely or microscopically—Or pick a quarrel with a single word or expression—But should read such judgments as a whole to see what is their effect—See also supra passim. 40 Court of Appeal—Approach by the Court of Appeal to judgments of criminal Courts—See immediately hereabove. The four Appellants in these consolidated appeals were convicted at the Assize Court of Nicosia of conspiracy to kill and attempting, on March 8, 1970, to kill the President of the Republic Archbishop Makarios and another person. They were sentenced to concurrent terms of eight years' and fourteen years' imprisonment. They now appeal against those convictions. The appeal was argued on the ground that the Assize Court misdirected themselves in law as to their approach to the case, namely as regards the onus and standard of proof, and that their misdirection wassuch that theproviso to section 145

(1)(

1. b)of the Criminal Procedure Law,Cap.155,should not be applied by this Court, because to try a man by a lower standard than that the law allows is in itself a gross miscarriage of justice which goes to the very vitals of any civilized system. The wrong approach complained of was that: (
2. a)the. trial Court applied a wrong test, that is the "probability test", instead ofthe"reasonable possibility test", in evaluating the evidence adduced by the defence; and (
3. b)that the trial Court " compartmentalized" their judgment, that is, they first made definite findings on the prosecution evidence before coming to consider the Appellants explanations; and that in this way the trial Court failed to come to its conclusion and verdict on the whole evidence in the case. It should beadded that it was not argued before the Supreme Court that the verdict was unreasonable having regard to the evidence adduced. Section 145

(1)(

1. a)and (
2. b)reads as follows: "145

(1)In determining an appeal against conviction, the Supreme Court, subject to the provisions of section 153 of this Law, may (

1. a)dismiss the appeal;" (
2. b)allow the appeal and quash the conviction if it 41 1971 Mar. 10 ADAMOS CHARTTONOS AND OTHERS v. THE REPUBUC 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. • thinks that the conviction should be set aside on the ground that it was, having regard to the evidence adduced, unreasonable or that the judgment of the trial Court should be set aside on the ground of a wrong decision on any question of law or on the ground that there was a substantial miscarriage of justice: T H E REPUBLIC Provided that the Supreme Court, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the Appellant, shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". The Supreme Court by majority (Vassifiades, P. dissenting) held that the Appellants failed to show that the Assize Court misdirected themselves as suggested; and as there was no complaint that the verdict was unreasonable having regard to the evidence adduced, the Supreme Court proceeded to dismiss the appeal. I. Held, (Vassiliades, P. dissenting): Certain words or phrases used rather loosely in the judgment might be misunderstood. However, looking at the judgment as a whole and viewing its effect, we are of opinion that the trial Court reached their verdict not as a result of any misdirection, but because, after properly considering the whole evidence, including the evidence adduced by the defence, they were satisfied that there was no reasonable doubt as to the guilt of the prisoners. //. Held, per Triantafyllides, J. (Stavrinides, J. concurring): (I) (
3. a)I am of the view that expressions regarding the burden of proof in a judgment of a criminal Court in Cyprus may, in a proper case, be construed more liberally and with less anxiety than corresponding expressions in a summing-up to a jury in England; being always understood that both, judgments and summings-up, should be examined as a whole and no fine distinctions should be made between one set of words used and another. (
4. b)Subject to the above it cannot, in my view, be disputed that there does exist a difference between what is "probable" and what is "reasonably possible"; and that such difference is, indeed, very material when it is to be decided whether or 42 not the guilt of an accused person has been established beyond reasonable doubt. (
5. c)Reading their judgment as a whole it is impossible for me to come to any conclusion other than that the trial Court had constantly in mind that the prosecution had to prove the guilt of the Appellants beyond reasonable doubt and that, thus, they did apply the correct principles regarding the burden ! of proof. (
6. d)With all the foregoing in mind, I am of the opinion that the word "probability" in the statement in the judgment that "the explanation of the accused need not be true, it is enough if it raises a probability" was used in contradistinction to the closely preceding word "true" and not in contradistinction to the notion of "reasonable possibility"; the term "probability" in that statement, which is expressly described by the trial Court as embodying a principle derived from the cases Schama and Abramovitch [1914] 11 Cr. App. R. 45 and R. v. Mentesh, 14 C.L.R. 232, was, in my view, used in a loose, and not in its strict dictionary, sense, so as to include the notion of the possibility of an explanation being reasonably true; therefore such expression was not used as excluding a "reasonable possibility". What I have just said about the use of the term , "probability" in the said statement in the judgment of the Court below, applies equally well to all occasions on which such term, or words to that effect, were used elsewhere in the said judgment. (
7. e)Moreover, it must be borne in mind that, as is abundantly clear from the judgment of the trial Court, the case for the defence in relation to each one of the Appellants was not rejected as not being "probable" though it might be said to be "reasonably possible", but as being an untrue one, based on concocted stories and afterthoughts. (
8. f)Regarding, thus, this ground of appeal concerning the aforesaid misdirection as to the burden of proof and the proper test to be applied, I have to hold that in actual fact there is not to be found any such misdirection in the judgment of the trial Court.

(2)(

1. a)I shall deal now with the correlated submission by counsel for the Appellants, regarding "compartmentalization" or "fragmentation" of the case by the Assize Court. This argument boils down to this: That the trial Judges accepted 43 • 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. T H E REPUBLIC 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBUC too early, and before dealing in their judgment with the case for the defence, the opinion evidence of theprosecution witness D. regarding finger-prints found. (
2. b)A perusal of the judgment shows that the trial Court convicted the Appellants after duly considering the case as a whole and without handicapped byany "compartmentalization" or "fragmentation". Though it may, at first sight, appear that these terms could be said to be applicable to the schemeof drafting adopted by the trial Court for their judgment, such terms are not at allapplicable to the thinking of the trial Judges in reaching their verdict about the guilt of the Appellants. (
3. c)Consequently, I am of the view that the relevant submission of counsel for the Appellants cannot be upheld; the convictions of the Appellants were decided on after due consideration of the evidence as a whole. ///. Heldper Josephides, J.:

(1)(

1. a)Let me say at once that, with great respect to the trial Court and appreciating their difficult task, I am of the view that some of the expressions used in their judgment, coupled with a number of epithets, are not very happy and they are likely to give rise to misunderstandings. But as it has often been said, the Court of Appeal should not look at the summing-up to the jury in England minutely or microscopically or pick a quarrel with a singleword, but should read it as a whole to see what isthe effect of it. This principle should a fortiori be applied to judgments by criminal Courts in Cyprus. (
2. b)Having said this, on reading as a whole the judgment of the Assize Court (ajudgment of 58 typed pages), I am not prepared to accept that the trial Judges applied a wrong test in considering the evidence for the defence. It would appear that the expressions used by them were only for the purpose of evaluating the evidence, and they were not, in any way, laying down a rule other than the accepted one that it will be sufficient for the defence to raise a doubt. In my view it is clear that it would be enough if the prisoner's explanation raises a doubt, and no other words or embellishment should be used in this connection. (
3. c)Looking not minutely, but broadly, at the whole judgment, I am of the view that there was no wrong approach 44 by the trial Court as regards the test applied in considering the explanations of the prisoners and the whole evidence at the end of the case; and I am further of the view that, considering all the evidence in the case which was accepted by the trial Court there was not miscarriage of justice.

(2)(

1. a)Thesecond point taken bycounsel for the Appellants was that the trial Court "compartmentalized" or "fragmented" the case i.e.that they made definitefindingson the prosecution evidence on main issues, before coming to consider the Appellants' explanations. (
2. b)Considering the judgment I do not think that it can be validly said that it shows that the trial Judges did not keep an open mind until the end of the case, nor that they failed to consider at the end of, and on the whole of, the case whether there was reasonable doubt created by the evidence, given by the prosecution or the prisoners. In fact, it is evident from a perusal of the whole judgment that, on consideration of the whole evidence,they weresatisfied of the guilt of the Appellants beyond reasonable doubt; and this wastheunanimous decision of all three Judges of the Assize Court. IV. Held per Hadjianastasswu, J.:

(1)(

1. a)It was submitted that the trial Court misdirected themselves because they assumed that the prisoners, afte.· the prosecution established a primafacie case, had to give an explanation which should be probable (and not reasonably possible). (
2. d)In dealing with this novel point, I would like to make it quite clear that the phrase used by the trial Court "it is enough if it raises a probability", is an expression which ought not to have been used, because it creates misgivings and because it is not what the case quoted (Schama andAbramovitch, supra) lays down. It was sufficient for the Court to add: "It is enough if it raises a doubt". But, in my opinion, because the trial Judges have used one form of language or another, is neither here nor there, because in the last resort it is not the particular formula that matters, it isthe effect of the summingup and the reasons given by the trial Court. This applies also to all occasions on which similar words are used in the judgment. (
3. c)In going through the various passages in the judgment of the trial Court which have been the subject of criticism, 45 1971 Mar. 10 ADAMOS CHARJTONOS A N D OTHERS v. T H E REPUBLIC 1971 - 10 Mar as well as through the whole of their judgment, it seems to me that neither did they assume in their approach that the prisoners had to give an explanation which should be at least ' 4 ADAMOS , ,, CHARITONOS AND OTHERS v. THE REPUBLIC , Τ · probable, nor had they in any way applied in this case the "probability test". On the contrary, I am satisfied that the trial Court adopted and applied the correct direction to themselves, that is, that, on consideration of the evidence as a whole, they had at the end of the case to be satisfied beyond reasonable doubt of the guilt of the prisoners before they could convict.

(2)(

1. a)With regard to the question of "compartmentalization" or "fragmentation" of the expert evidence, I take the view that there was no misdirection in law. Because the trial Court had considered earlier the expert evidence of the prosecution after a submission by the defence that no prima facie case had been made out sufficient to require the accused to make their defence. Inevitably, the trial Court had to consider the weight of the evidence for the purpose of deciding whether or not the evidence so far laid before them was such that, in the absence of any explanation on the part of the defence, as a reasonable Court might be ready to convict (see R. v. Moustafa Karamehmet, 16 C.L.R. 46 at pp. 48-49). ι (
2. b)It was, therefore, inevitable at that stage that the trial Court should proceed to weigh the expert evidence and reach its conclusion regarding the reliability and credibility of the expert prosecution witnesses; but this does not mean that the trial Court disabled itself from deciding with an open mind the whole case after listening to the opinion of the defence expert witnesses as well as of the explanations of the accused. (
3. c)In my opinion the summing-up in the present case must not be too critically dealt with after a long trial. It is sufficient that we are satisfied, as we have to, that the right principle of law has been applied viz. that the trial Court, having duly considered the evidence as a whole, reached their verdict because they were satisfied at the end of the case that the Appellants were guilty beyond reasonable doubt. Appeals dismissed. Cases referred t o : / Woolmington v.'D.P.P. [1935] A.C. 462; 25 Cr. App. R. 72, at pp. 95-96; 46 Jayasena v. The Queen [1970] 30 Cox C.C.234; 2 W.L.R. 448, at p. 453; t Bullard v. The Queen [195η 42 Cr. App. R. 1, at p. 7; Reg. v. McKenna (Supreme Court of New South Wales [1964] 31 W.N. 330, at pp. 332-334; Lilienthal v. United States 97 U.S. 237; 24 Law. Ed. 901; R. v. Steane [1947] K.B. 997, at p. 1004; R. v. Biffen (unreported); see [1966] Criminal Law Review Ρ- H I ; R. v. Oliva [1962] 46 Cr. App. R. 241, at p. 243; Can Poh Chye v. Public Prosecutor [1968] 1 M.L.J. 288 at pp. 288-289; R. v. Allan George Wood, 52 Cr. App. R. 74, at pp. 78-79; Schama and Abramovitch [1914] 11 Cr. App. R. 45; Mancini v. D.P.P. [1942] A.C. 1, at p. 12; R. v. Bradbury [1969] 53 Cr. App. R. 217, at pp. 219-220; R. v. Garth [1949] 33 Cr. App. R. 100; [1949] 1 AH E.R. 773; R. v. Stoddart [1909] 2 Cr. App. R. 217; R. v, Johnson [1962] 46 Cr. App. R. 52, at p. 57; Khoo Sit Hoo v. Urn Thean Tong [1912] A.C. 325; R. v. Abraham Barnett Kritz [1949] 33 Cr. App. R. 169 , at pp. 176-177; R. v. John Robert Aves [1951] 34 Cr. App. R. 159, at p. 160; R. v. Summers [1952] 1 All E.R. 1059; 39 Cr. App. R. 14 at p. 15; Henry Walters v. The Queen [1969] 2 W.L.R. 60; R. v. Wood [1968] 52 Cr. App. R. 74, at p. 78; t R. v. Murtagh and Kennedy [1955] 39 Cr. App. R. 72, atp.83; R. v. Blackburn [1955] 39 Cr. App. R. 84, at p. 85; 47 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS V. T H E REPUBLIC 1971 Mar.'10 R. v. Hepworth and Fearntey [1955] 39 Cr. App. R. 152, at pp. 154-155; ADAMOS CHARITONOS R. v. Trigg [1963] 47 Cr. App. R. 94, at p. 99; AND OTHERS Rex v. Castelton, 3 Cr. App. R. 74; V. THE REPUBLIC Walters v. The Queen [1969] 2 A.C. 26, at pp. 29-31; See also in the Notable British trials series the cases (decided after the Woolmington case (supra)): R. v. Battenburg and Stoner, R. v. Nodder, R. v. Barnes and Others, R. v. Carraher, R. v. Leg and Smith, R. v. Carnband R. v. Craig and Bentley. Austria v. Italy, a decision of the European Commission of Human Rights reported in the 1963 Yearbook of the European Commission of Human Rights at p. 782. Chrysanthou v. The Police

(1970)2 C.L.R. 95; R. v. Mentesh

(1934)14 C.L.R. 232, at pp. 244-245; Regina v. Nicos Sampson Georghiades (No. 2)

(1957)22 C.L.R. 128, at p. 133; Pefkos and Others v. The Republic, 1961 C.L.R. 340, at pp. 352, 368; Kalli v. The Republic, 1961 C.L.R. 440, at p. 444; Kafalos v. The Queen, 19 C.L.R. 121, at p. 126; R. v. Moustafa Karamehmet, 16 C.L.R. 46, at pp. 48-49; Volettos v. The Republic, 1961 C.L.R. 169, at p. 180; Papaprokopiou v. The District Officer Nicosia and Kyrenia, 1964 C.L.R. 354, at p. 358; Fostieri v. The Republic

(1969)2 C.L.R. 105, at p. 112; Aristidou v. The Republic

(1967)2 C.L.R. 43, at p. 103; Demetriou v. The Republic, 1961 C.L.R. 309, at p.

1. Appeals against conviction. Appeals against conviction by Adamos Charitonos and three Others who were convicted on the 19th November, 1970, at the Assize Court of Nicosia (Criminal Case N o . 6971/70) 48 on one count of the offence of conspiracy to kill contrary to sections 217, 20 and 21 of the Criminal Code Cap. 154 (as amended) and on two counts of the offence of attempt to kill contrary to sections 214(a), 20 and 21 of the Criminal Code (supra) and were each sentenced by A. Loizou, P.D.C., Stavrinakis and Stylianides, D.JJ. to eight years' imprisonment on the first count and to fourteen years' imprisonment on each of the second and third counts, all the sentences to run concurrently. Sir Harold Cassel, Q.C. with A. Triantafyllides, K. Saveriades and P. Demetriou, for the Appellants." K. Talarides, Senior Counsel of the Republic, for the Respondent. Cur. adv. vult. The following judgments were read:VASSILIADES, P.: By a majority decision, the Court decides that all four appeals fail; and they must be dismissed. I amafraid, Ifind myselfindisagreement withtheothermembers of the Court; and I must state my reasons for this. But, I do not think that it is necessary to go into much detail in doing so. I shall try to do it as briefly as possible. The four appeals before us, arise in the same case. The Appellants were jointly charged; they were tried together; and they wereconvicted by oneand the samejudgment. Their appeals wereconsolidated by consent; and learned counsel on both sides argued them together, stressing in each individual appeal, the points calling for special consideration. AH four appeals stand mainly on the same ground; but beyond that ground, each appeal has its own individual aspects which called for separate consideration. And in this connection, before I proceed into the matter, I wish to express the Court's gratitude—and this is unanimous—to learned counsel on both sides, for the assistance they gave,to the Court; and, for the able manner in which they presented the whole case. The four Appellants were convicted in the Assize Court of Nicosia, on November 19, 1970, of attempted homicide; and of conspiracy to commit murder, by taking part in the attempted assassination of Archbishop Makarios, the Primate of the Greek Orthodox Church of Cyprus and President of 49 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. T H E REPUBLIC Vassiliades, P. the Cyprus Republic, which cook place in Nicosia a year ago, on March 8,
2. Each of the Appellants was sentenced to 8 years' imprisonment for the conspiracy; and 14years for the attempted murder. The latter was charged in two counts; one for the attempt on the Archbishop's life, and the other for attempt at the life of the pilot of his helicopter. The Appellants were convicted on all counts charged; the sentences are concurrent. The appeals challenge the validity of the convictions; and they were argued mainly on two grounds: First, that the trial Court misdirected themselves on the law in a manner resulting in a miscarriage of justice; and secondly, that the evidence affecting each Appellant separately, viewed as a whole and tested properly, cannot result to a conviction free from reasonable doubt. It is contended for the Appellants that the prosecution case rests mainly, if not entirely, on opinion evidence regarding finger-prints; and that the evidence in the case was approached and considered by the trial Court labouring and operating under a misdirection. I shall deal with these matters after I shall have set the background of the case. In opening the prosecution at the trial, personally, the Attorney-General of the Republic, described the case as one of the most horrifying crimes in the history of this country; the object of which, had it succeeded, would have disastrous repercussions; and would cause irreparable damage to the country. And, he added that this was a crime satanically conceived; infernally hatched; and fiendishly executed; failing only by Divine providence. The trial Court apparently agreed that that was an accurate description of the crime. This may be clearly seen from their approach to the sentence; where the Court added that this was a well-planned political assassination, which, in a democratic state, is a nightmare for every freedom-loving citizen, as it undermines the rule of law; and leads to anarchy and civil war; two deadly calamities for the people of any country. The trial Court, furthermore, expressed the view that the defendants were not the people who conceived the devilish idea; they were only the executive organs of others. Indeed the conspiracy charged in the indictment, names as one of the conspirators an ex-Minister of the Interior in the President's government for more than eight years, who was killed by 50 another planned murder a week after the crime now under consideration. The Coroner's verdict in that case was: " Premeditated murder by person or persons unknown;" verifying in a most realistic way, the trial Court's view that political crimes are a curse for any country. The persons convicted for the execution of this frightful crime are:
3. A 24-years old student of the Highest Agricultural College in Athens, from a farming family of the Cyprus _village of Yeri, near Nicosia;
4. A young estate agent of Strovolos, Nicosia, with a wife and three minor children under seven years of age;
5. A fairly young police officer holding the rank of Acting Sub-Inspector, in charge of the Information Service of Famagusta Police, married and the father of two minor children under ten years of age; and,
6. Another policeman, 28 years of age, also in the Information Service of Famagusta Police under the orders of the previous Appellant. This is the description I could find regarding the Appellants in the bulky record of the trial; excepting for the fact that the last two Appellants appear to have had a record for activity in the EOKA organisation during the liberation struggle; and to have been closely connected with the late ex-Minister named in the conspiracy charge, also an EOKA man, in whose confidence they appear to have been for years. Suspicion fell on the Appellants very soon after the commission of the crime. They were arrested with other persons; interrogated; kept in custody; and eventually charged together with two other persons, early in April last. The preliminary inquiry, lasting for 13 whole days, was completed on May 13, 1970, when all six accused were committed for trial by the Assizes. They were kept in custody until the opening of the trial on September 28, 1970, when as already stated, the case was opened by the Attorney-General of the Republic. At the end of his opening the AttorneyGeneral entered a nolleprosequi for accused 6; and he was discharged. The other five accused (including the Appellants) stood their trial. The prosecution called in all eighty

(80)witnesses; and produced one hundred-and-one

(101)exhibits. At the close of the presecution-case, on October 14, counsel for the defence submitted that none of the accused should be called upon, as the prosecution had failed to make out a prima facie case against any one of them. 51 1971 Mar.10 ADAMOS CHARITONOS ANDOTHERS THE REPUBUC Vassiliades,P. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC Vassiliades, P. On the other hand counsel for the prosecution strongly opposed that submission; and invited the trial Court to call upon all the accused in the dock, on all the counts in the information. The Court took time to consider their ruling. They delivered it on October 21st. After going carefully into the matter in an eight pagedecision,the AssizeCourt acquitted accused 5 on ail counts; and called upon all the others (the four Appellants before us) to make their defence. The trial Court's ruling ends in these words: " Having reached these conclusions and in the light of the aforesaid authorities, we are of the opinion that irrespective of whether an explanation was given or not, no reasonable tribunal might convict accused 5, hence we acquit and discharge him on all counts. Accused 1, 2, 3 and 4 will be called upon to make their defence on counts 1, 2 and 3". The case against them rested mainly on evidence of fingerprints; and on circumstantial evidence. None of the eyewitnesses who saw four persons escaping from the scene of the crime, and described them to the police, recognized any; and none identified the accused as one of them. The case for the defence, in a very brief outline, was: The first Appellant elected to giveevidence on oath. He confirmed from the witness-box the contents of his previous statements to the Police, to the effect that he had nothing to do with the crime. He was, he said, in the company of the second Appellant and others on the previous evening, in places of entertainment where plenty of drink was consumed. Later in the night, at the suggestion of the second Appellant, who was obviously under the influence of drink, they drove together to Limassol; returning from there at about 2.30 a.m. They both went to the house of the second Appellant, where the first Appellant was given hospitality for the night, as it was too late to return to his village. The following morning at about 7 o'clock they drove to Nicosia town; and whilst passing the road by the stadium, they heard shots. These must have been the firing in the attempt. They wondered what happened; and thought that they would soon hear about it on the wireless news. It may be noted here that the stadium is about half a mile from the place where the crime was committed; and that was some eight minutes after 7 o'clock. 52 The Appellant then gave his movements, claiming an alibi; and contended that he didnotknow Appellants 3 and 4 until he met them in the prisons, where they were all detained after their arrest in connection with this crime. He was cross examined at length by able counsel for the prosecution, who strongly contested Appellant's alibi. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS THE REPUBUC The second Appellant elected to make an unsworn statement from the dock. He confirmed what he had earlier stated to the police; adding only certain observations on the evidence of prosecution witnesses against him. He affirmed that he had not seen the third Appellant for the last ten years; and that he had not known the fourth Appellant until they met in the prisons after their arrest for this crime. The third Appellant elected to give evidence. His version was already in the hands of the prosecution, in the form of statements made during the investigations, when he was interrogated morethan once. He stated again from thewitness box that he had nothing to do with the commission of the crime; and that he first heard about it when he went to the Famagusta Police Station where he was posted, at about 9 o'clock in the morning, after a telephone call to his house from the Control Room at 8.

1. This was the general call-up of the Police, soon after the attempt on the President's life. This Appellant also asserted an alibi, giving particulars and naming persons. His alibi was likewise strongly contested by counsel for the prosecution. The fourth Appellant also elected to give evidence on oath. Being a policeman, arrested in connection with this state crime, he had already been interrogated by investigating officers; and his statement, long and detailed, was in the hands of the prosecution. He denied having had anything to do with the crime in question; and asserted an alibi which rested mostly on the evidence of members of his family. Being a bachelor, he was living with his mother, two brothers and two sisters. He shared a room with his sister's fiance. After the evidence'of the fourth Appellant, the defence called their witnesses. Twenty-six witnesses were called for the defence (mostly in support of the alibis) including three policemen and a finger-prints expert from abroad. After elaborate addresses from counsel on both sides, the Assize Court took time to consider their judgment, which 53 Vassiliades, P, 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. T H E REPUBLIC Vassiliades, P. they delivered a few days later, on November 19,
2. After dealing with the legal aspect of the case and the evidence before them, the Court convicted all four Appellants on all counts in the information. The judgment gives fully, in a text of 65 pages, the approach of the trial Court to the case; and the reasons for which they reached their verdict. This is the judgment challenged by the present appeal. As already stated it is challenged mainly on two grounds; misdirection; and its effect in approaching and evaluating the evidence. The seriousness of the case has already been underlined earlier in this judgment; there is no room for exaggeration in describing it as such. But this fact must not overwhelm one into forgetting that the Appellants are the first to bear the impact of such a case. Their protection lies in the law of their country; a fundamental part of which is the provision in Article 12 of the Constitution that "every person charged with an offence shall be presumed innocent until proved guilty according to law*'. Moreover, this is one of the basic human rights which received recognition in international declarations, intended to give the character of present day civilisation; the civilisation we pride ourselves to belong. It is the right in Article 6, para. 2, of the European Convention of Human Rights, which, according to the interpretation received in the case of Austria v. Italy (Op. Com. 788/60, para. 199 at page 140 in The Digest of Case Law, relating to the European Convention 1955-1967) requires that " Court Judges in fulfilling their duties should not start with the conviction or assumption that the accused committed the act with which he is charged". In our legal system this is the well established fundamental principle which settles the onus of proof on the prosecution. But the commentary goes further. It reads:" Since Article 6

(2)is thus primarily concerned with the spirit in which the Judges must carry out their task, it may be asked whether it does not also apply to the attitude of other persons taking part in the proceedings, such as counsel for the prosecution and for the civil plaintiff, experts and witnesses. If such persons express themselves towards the accused in flights of language such as might disturb the calm of the Court by their violence " the responsibility rests on the Presiding Judge to react against 54 such behaviour, lest he may give the impression that the Court shares the obvious animosity towards the accused and regards him from the outset as guilty. This is the atmosphere which' the law requires to be maintained in every criminal trial (let alone a trial of this magnitude) and places the responsibility for maintaining it, on the Court. The Court which carries—and must be seen to be carrying—the still heavier responsibility of actually sustaining individual human rights entrenched in the law. Such atmosphere is most necessary to enable the Court to decide the very important issue of the guilt or otherwise of the accused, starting from the legal presumption that he is innocent; and persistently preserving an open mind on this issue, until the end of the trial, as it is at that stage (and at that stage only) that the Court must weigh the evidence as a whole and decide whether the prosecution have discharged the onus placed upon it by the law, to satisfy the Court's mind and conscience, of the guilt of the accused for the particular offence charged. I considered it necessary to lay this foundation of a trial under the law (to which the Appellants were entitled) because the main complaint of the Appellants, as presented by learned counsel on their behalf, is that the trial Court reached their verdict, by evaluating the evidence as it came along; and allowing such evaluation to affect their mind before the whole evidence was before them. Their complaint is that the trial Court by "compartmentalising" the evidence—as their counsel put it—failed to preserve an open mind until the end of the case, which put at a disadvantage the evidence for the defence. It is this failure to keep an open mind until the end which, according to counsel for the Appellants, opened the door to the misdirection complained of, resulting in a miscarriage of justice. I shall have to deal with the legal aspect of this complaint, in due course. I must now turn to the facts. It is common ground in this appeal that the crimes charged were committed. The dispute is whether each of the individual Appellants before us, is a party in the commission of the crimes. The attempt was committed very soon after 7 o'clock on the morning of March 8, 1970, when the Presidential helicopter took off from the grounds of the Archbishopric to take the President to Machera Monastery, where he was to officiate in a ceremony. He was the only passenger in the helicopter, occupying the seat near 55 1971 Mar. 10 ADAMOS CHARnONOS AND OTHERS v. THE REPUBLIC Vassiliades, P. 1971 Mar. 10 ADAMOS CHARTrONOS AND OTHERS v. THE REPUBUC Vassiliades,P. the pilot. When the machine rose above the roofs of the neighbouring houses, it was fired at from the roof terrace of a building opposite the Archbishopric; and was forced to land, having been hit by several bullets, one of which seriously wounded the pilot. Several persons who happened to be in the streets or to live in the vicinity, went to see what was happening. One of them said that he saw the helicopter while it was being fired at. Giving evidence for the prosecution, he stated that he telephoned the police and then went back to his verandah to watch the development of events. He saw four persons escaping from the back of the premises from which the helicopter was shot. He saw them jumping over a wall one after another and coming in his direction. One was taller than the other three. He saw their faces. He called out to them " What happened boys?" He got no reply. One of them tried to conceal his face with his hand. He called out to them to stop, threatening to fire at them with his air-gun which he was holding. He kept watching them until they escaped in a car. He did not recognize them; and later, at a police identification parade he could not identify any of the Appellants as one of them. In fact the Appellants, as they stood up for us to see, they are two persons of about the same height taller than the other two who are again of about the same height. There isnone higher than the other three. One of them wears a moustache; the others are clean shaved. None of the witnesses who saw the escaping culprits in the street, speaks of one of them wearing a moustache. Another eye-witness saw the four culprits coming down the street towards his house. He watched them. His wife was also in the street at the time, coming with a bucket of water, from the opposite direction. He heard his wife asking the culprits "what happened, boys?" One of them put his finger to his lips to signify silence. They passed almost under his balcony. They came face to face with the wife. This witness also describes them as one being taller than the other three. He does not speak of one of them wearing a moustache. The wife was not called as a witness. Neither identified any of the Appellants as one of the four escaping culprits. It is the case for the prosecution that the four escaping culprits are the four Appellants before us. The evidence connecting each of them with the crime is dealt with in detail 56 in thejudgment of the trial Court. It consists of finger print evidence; circumstantial evidence; and thecomplete rejection of the evidence of the Appellants and that of their witnesses. As already stated, none of the several persons who saw the four culprits escaping through one street and then through another to the car which was obviously parked there for the purpose, could identify any of the Appellants as one of the culprits who escaped from the scene of the crime. At this stage it may definitely be said that the prosecution case rests on the finger print evidence, and the fact that the escape car was under the hire of the second Appellant. As submitted on behalf of the Appellants, their convictions can only be sustained on the finger-print evidence, which to a great extent is opinion evidence. Especially opinion as to the recency of the finger prints. This is why it is contended that the misdirection complained of, resulted inevitably, in a substantial miscarriage of justice, leaving no room for the application of the proviso. (Section 145 of the Criminal Procedure Law, Cap. 155). So that if the misdirection point succeeds, the appeals must succeed. Before going into this crucial point, I must briefly refer to the principles upon which the trial Court approached the burden of proof. And, in this connection, I find it necessary to cite verbatim the relevant part of the trial Court'sjudgment. It reads:" Before wedeal with the casefor the defence weconsider it pertinent to deal briefly with the principles of law relating to the burden of proof in criminal cases which weshallhaveall alonginmind inreachingourconclusions. They are summed up in Archbold 36th Edition, para. 1001, as follows: 'the general rule is that apart from any provision to the contrary (which does not exist in the present case) the burden of proof lies upon the prosecution and it is not for the defence to prove innocence. Woolmington v. D.P.P., 25 Cr. App. R. at pp. 95-96. Where the prosecution gives prima facie evidence from which the guilt of trie prisoner might be presumed and which, therefore, calls for an explanation by the prisoner, and no answer or explanation is given, a presumption is raised upon which the jury may be justified in returning a verdict of 'guilty'. But, if an . explanation is given by or on behalf of the prisoner which raises in the mind of the jury reasonable doubt as to his 57 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBUC Vassiliades, P. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBLIC Vassiliades, P. guilt, he is entitled to be acquitted, as the prosecution has failed to satisfy the onus of proof which lies upon them' ". Learned counsel for the Appellants observed that what was not included in the quotation (replaced by the dotted space) is most important in the instant case. It is important not only because it covers the crux of the main complaint in the appeals; but also because it indicates what the trial Court did not consider of importance. It is this part of the quotation: ( he is entitled to be acquitted) "because if upon the whole of the evidence in the case, the jury are left in a real state of doubt" the prosecution has failed to satisfy the onus of proof which lies upon them. It is upon the whole of the evidence in the case (including the evidence for the defence) that the Court must consider with an open mind at that final stage in order to decide whether they are left in a state of doubt regarding the guilt of the accused. This is the law applicable to the matter, declared time and again by the courts. The law which is so delicate and so difficult in its application by trial Courts, that verdicts are set aside and convictions quashed if there is a misdirection or insufficient direction about it in any criminal case. There is no dispute in this case, that this is the law. The dispute is whether it was correctly and properly applied. Whether the trial Court preserved an open mind until the whole of the evidence was before them; and then tested it on the right test, as the prosecution contend. Or,· they evaluated the evidence asit came along, testing it against earlier evidence already accepted as correct; and having in mind the wrong test (especially regarding the evidence of the defence) as the Appellants complain. The probability test, as counsel described it, instead of the possibility test. I do not propose going much into the authorities. They are there; a great number of them, referred to and discussed in subsequent cases. Each judgment must be read as a whole, in the background of the facts to which it refers. But I think that I must refer to some cases where I found help. I take it that the Woolmington case (Woolmington v. D.P.P. [1935] A.C. 462, H.L. (E)) isin every lawyer's mind whendealingwith the burden of proof. It is a landmark in the development of the law, regarding the burden of proof, not because it changed the law, but because it marked "a change in the 58 content of the law resulting in a change in the manner of applying it". (Per Lord Devlin in Jayasena v. The Queue (P.C.) [1970] 2 W.L.R. 448 at 453). In Bullard v. The Queen [1957] 42 Cr. App. R. 1, another Privy Council case, where the summing,up in a murder trial was challenged for insufficient direction to the jury on the question of provocation, Lord Tucker in giving the reasons of the Court for allowing the appeal had this to say:" In the present case the fact that the jury rejected the defence of self-defence does not necessarily mean that the evidence for the defence was not of such kind that, even if not accepted in its entirety, it might not have left them in reasonable doubt whether the prosecution had discharged the onus which lay on them of proving that the killing was unprovoked. Their Lordships do not shrink from saying that such a result would have been improbable, but they cannot say it would have been impossible". The difference between "improbable" and "impossible" on the jury's mind, when being directed by the Judge for the purposes of arriving at their verdict, is here underlined. The effect of Bullard v. The Queen (supra) was considered in Reg. v. McKenna before a Court of Criminal Appeal in Australia (Supreme Court of New South Wales

(1964)31, W.N. 330). That was a case of recent possession of stolen goods. The Court held that the test to be applied in a criminal case is satisfaction beyond reasonable doubt; and that in directing a jury as to the onus of proof the formula of probability and possibility should not be used. In this connection the Court took the view that it is a misdirection to tell the jury that " If the evidence is so strong against an accused man as to allow only a remote possibility in his favour, which, when considering the matter in the jury room, you can dismiss with the sentence: ' Of course it is possible but not in the least probable' then the case is proved beyond reasonable doubt". With great respect, I adopt that view. And I hold that in Cyprus where the Judge does not have to direct the jury, but he must direct himself correctly throughout the trial, and such direction must be reflected in his reasoned judgment, if he 59 1971 - 10 Mar ADAMOS CHARITONOS A N D OTHERS v. THE REPUBLIC Vassiliades, P. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBUC Vassiliades,P. labours with tests of probability and possibility in dealing with the version of the defendant or the evidence of his witnesses, he labours under a misdirection which may well go to the root of his verdict. Mr. Justice Macfarlan in dealing with the matter at p. 334, took the view that the burden of proof is not concerned " with distinctions between possibilities and probabilities. (But he thought) that a jury may still have a reasonable doubt although that upon which they found their conclusion is only a reasonable possibility of innocence. If they think there is that reasonable possibility, that it is one which arises from the evidence or the absence of evidence, then I think it is one which to the jury would raise a reasonable doubt as to the guilt of the accused". I respectfully agree; and think that it could likewise raise a reasonable doubt in the mind of a Judge functioning as a jury. Finally, in a still more recent case decided in the Court of Appeal in England, to which learned counsel for the Appellants referred (Reg. v. Bradbury [1969] 2 W.L.R. 615) the general rule as to proof in the second sub-paragraph of paragraph 1001 of Archbold's 36th Ed. was considered. It is the quotation in the trial Court's judgment to which reference has been made earlier. The confusion which it may create in the jury's mind if used in directing the jury on the burden of proof, is clearly pointed out. Particularly certain portions of it which refer to " a presumption being raised upon which the jury may be justified in returning a verdict of guilty are not such as one should contemplate citing to a jury. They are not calculated to help them; indeed they have an unfortunate tendency to confuse, rather than to elucidate, and to lead a jury to the conclusion that if an accused man gives an explanation which they reject, the step towards convicting him is short and well-nigh inevitable". It is true that the Court in that case referred also to the distinction between a lawyer and a layman serving on a jury; and described the passage as a very useful one for the lawyer to have in mind. But with the greatest respect to such a view, I find that the present case drives me to the conclusion that 60 »n Cyprus where the Judge or Judges in a trial perform the double function of Judge and jury, the proper direction to follow throughout the trial is to preserve an open mind until the end, ready to consider all possibilities and probabilities, in the light of the whole evidence before them, in order to answer in their mind and conscience the paramount question in a criminal trial: Are you satisfied on the evidence before you, considered as a whole, that every ingredient of the offence stands proved? And are you sure, upon that evidence, that the accused took part in its commission? Because if you have doubt in your mind or you feel any uneasiness in your conscience on any of these matters, the law requires you to say so; as this entitles the defendant to an acquittal. I now turn to the appeals before us. The four Appellants challenge the validity of their conviction for the grave crime described earlier, on the legal ground that the trial Court misdirected themselves regarding their. approach to the evidence; and also regarding the proper legal test for its evaluation. They complain that, overwhelmed by the importance of the case and the gravity of the crime, which undoubtedly has been committed, the trial Court received the prosecution evidence on the finger-prints as thecrucialevidence in the case. That was made apparent right from the opening.Taking the evidence of Police Inspector Economou (P.W.57) a firearms and finger-prints expert, the Court were fully satisfied that the crime was committed by the guns found on the roof terrace of the building opposite the Archbishopric, very soon after the crime. They were a bren machinegun; a semi-automatic rifle; an Enfield rifle; and magazines, ammunition and other accessories of such weapons. Some of these articles appeared to have finger-prints on them.— They were duly protected; and another finger-prints officer, SubInspector Georghiou (P.W.58) who was with him, took care of them for further examination. This witness' evidence was hardly contested. These were the arms; and there were finger-prints on them. Another article seized very,soon after the commission of the crime was the car used by the four culprits for their escape. Finger-prints were noticed on this exhibit too. Witness Georghiou examined the car and found identifiable fingerprints on the mirror; on the right and left glass panes of the doors; and on the inside of the right ventilator. These finger-prints were also taken care of for further examination. 61 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBLIC Vassiliades, P. 1971 Mar.10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC Vassiliades,P. The value of finger-print evidence was in the mind of the Police right from the start. The officer in charge of the forensic science laboratory of the Cyprus Police Force, Superintendent Dekatris (P.W.60) was one of the first Police Officers to visit the place where the crime was committed, in order to look for and take care of any finger-print evidence. According to his own testimony he was, with his assistants, on the roof terrace from which the culprits fired at the helicopter, at about 7.40 a.m. This officer saw the arms and accessories already referred to and directed the taking of photographs and the preliminary examination of the exhibits for finger-prints. He noticed with the naked eye finger-prints on the magazine which was on the parapet of the terrace wall. He also noticed finger-prints on the brengun magazine fitted on the gun. Answering a question whether the finger-prints were visible with the naked eye, the witness said: " If one looked carefully yes. I examined both with the naked eye and with a lens". The exhibits were taken to the laboratory for further examination, with all due care. A few days later, on the 12th March, the witness was handed two finger-print forms (exhibits 7 and 8) with the finger-prints of Appellants3and4respectively. On the following day, he was handed some more finger-print forms for Appellants 1, 3 and 4 (exhibits 29, 30 and 31). The finger-print evidence is the evidence upon which this case stands or falls. In the course of the argument before us, counsel for the prosecution frankly, and quite rightly in my opinion, conceded that the convictions could not be sustained if the finger-print evidence is put in doubt. Three Police experts gave evidence in connection with finger-prints found on exhibits, i.e. Inspector Andreas Economou (P.W.57), Acting Sub-Inspector Georghiou (P.W.58) and Superintendent Dekratis (P.W.60). Their evidence runs into a number of pages on the record and contains a lot of detail. I find it unnecessary to deal with it at length at this stage. The fingerprint evidence resulted from the examination conducted under the direction of Superintendent Dekratis who is the main witness in this connection. All these three prosecution witnesses impressed the trial Court favourably and their evidence was fully accepted. It is to the effect that two finger-prints of the index and middle finger of the right hand, on the empty magazine (Exhibit 35A) 62 were identified as coming from the first Appellant. One identifiable finger-print found on the loaded magazine (exhibit 35B) was identified as coming from Appellant No. 3; fingerprints of the right and left thumbs on two rounds of ammunition in the loaded magazine (35B) were sufficiently identified as coming from Appellant No. 4. Finger-prints of four fingers of the left hand, (two of which were identifiable) found on the glass door of the escape car also came from Appellant No. 4. The trial Court obviously, in my opinion, accepted the finger-print evidence of the prosecution witnesses and had no doubt in their mind that the finger-prints in question connected directly Appellants 1, 3 and 4 with the commission of the crime. In support of this view there was also other evidence in the case, such as the close co-operation between Appellants 3 and 4 and their connection and long standing relations with the ex-Minister named in the conspiracy charge. The defence questioned the correctness and the reliability of the finger-print evidence of the prosecution witnesses; but at the same time they explained the presence of any finger-prints on the exhibits, by the fact that Appellants 3 and 4 were handling such articles for years, in the course of their police work and also, in connection with activities directed by the late Minister. It may be recalled that for many years now (running as far back as 1955) conditions in the island have been such that weapons of the kind connected with this crime, moved about the country in the hands of many authorised and unauthorised persons. Appellants 3 and 4 handled a great number of such articles, and Appellant No. 1 apparently had his share in such activities from a very young age. The age of the finger-prints in question was, therefore, an important matter. The first prosecution witness on fingerprints, Inspector Economou, was asked by counsel for the defence whether, as an expert on finger prints, he would expect such prints to remain on a gun for one, two or three years. His answer was "it depends on the condition of the surface; on the gun; on weather conditions; from the circulation of the article here and there; the place where it is stored; and from the health of the person who left the finger-prints". And he added: "I have given the factors which contribute to the life of a finger-print on an arm. When all factors are present, they (finger-prints) may. remain for a long time". 63 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBBIC Vassiliades, P. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBUC Vassiliades, P. Counsel for the Appellants took three points in this connection:

(1)That none of the prosecution witnesses spoke regarding the age of the finger-prints in question until the matter was raised by the defence.

(2)That no investigation has been carried out for the purpose of verifying whether finger prints of a similar nature could be found on other arms under the control of the authorities, especially arms which in one way or another came under the control of the late Minister and his men.

(3)The evidence of the prosecution witnesses referred to the finger-prints in question without attempting to explain the absence of any other finger-prints on the exhibits. Regarding the finger-prints on the escape car, the defence had an explanation connected with the use of this car a few days before the attempt. Evidence was called in support of that explanation, including the evidence of a policeman who was together with Appellant No. 4 when he searched that same car on that earlier occasion. Regarding the age of finger-prints, especially those on the weapons found on the terrace, the defence called an expert witness from Greece (none being available in Cyprus) a retired police officer with long service and vast experience in a similar branch of the Greek Police, Mr. Nicolaos Spyropoulos (D.W. 15). His evidence is contained in some 25 pages of the record out of which 18 in cross-examination. This is understandable considering the importance of the finger-print evidence in the prosecution case. What, however, is not understandable to me is the evaluation of this witness' evidence by the trial Court. I have carefully read it and could not find justification in the criticism that his evidence was full of contradictions. The sum total of his opinion that the age of finger-prints cannot be accurately determined: And that it is a matter of opinion formed by the examining expert on the presence or otherwise of various factors, is surely correct. It was open to the trial Court to prefer the opinion of Supt. Dekratis to that of Mr. Spyropoulos where they differed. But reading the latter's evidence in comparison to that of the former, I think he deserved due consideration; especially as an expert called for the defence in a case of this nature. This brings me to the complaint of the Appellants, for the approach of the trial Court to the evidence as placed by them 64 into separate compartments. The "compartmentalization" of the case, as learned counsel for the Appellants put it. Within those separate compartments, the trial Court made findings of fact, rejecting the evidence which was inconsistent with such findings. This offers an explanation, it was submitted, for the rejection by the trial Court of practically every piece of the defence evidence; and the adverse evaluation of practically all defence witnesses. Again, here, I find it unnecessary to go into detail. Sir Harold Cassel for the Appellants did so; especially when arguing on the ground of misdirection in testing the version of the Appellants and the evidence of their witnesses on the probability test instead of the possibility test. The complaint of the Appellants in this connection, is that the trial Court tested their version and the evidence called in support of such version, on whether, in their view, it was probable or improbable. While in a criminal case the proper test is whether the version of the defence is at all possible, so as to create a doubt in the mind of the Court regarding the guilt of the defendant. Provided always that the Court has preserved an open mind on the question, until the end, ready to consider whether evidence appearing as improbable, is at all possible. Here, for instance, it was submitted, evidence regarding incidents or events apparently possible, was rejected as a concoction or an afterthought. Examples of this approach to the defence evidence were given in the course of the argument. The possibility of the presence of finger-prints on other guns, magazines or bullets, among those which passed through the hands of the Appellants (especially Appellants 3 and 4) cannot be excluded. It is not a possibility but a strong probability. This matter does not appear to have been investigated. The presence of finger-prints on such arms found in the Police Stores or under the control of the late exMinister, would throw useful light in the case; and could have been very useful to the defence. The trial Court seems to have considered the finger-prints on the exhibits without taking account of such a possibility. The evidence regarding the use of the escape car ZDR.320 (under the control of the second Appellant) for a trip to Famagusta, a few days before the crime, was certainly a possible 65 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. THE REPUBUC Vassiliades, P. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. story, calling for consideration. The persons who used it for that trip spoke about it from the witness box. Persons who saw it in Famagusta spoke about it; including the policemen who took part in the search; a complaint was made about that search. The whole of this evidence was rejected as "improbable". But it cannot be excluded as impossible. THE REPUBLIC Vassiliades, P. The same may be said about the evidence of those who saw the car of the 3rd Appellant at Famagusta on the morning of the 8th March; about the evidence of the person who saw the Appellant himself at Famagusta that morning; of those who saw the 4th Appellant at Famagusta at a material time. This evidence could have been partly or entirely rejected as "improbable" but it cannot be said that such incidents could not possibly have taken place. One can refer to a number of similar examples to demonstrate the difference between what was "probable and what was "possible" in the defence evidence. Reading the judgment of the trial Court, (which undoubtedly goes into great detail) in the light of the able addresses of learned counsel on both sides, I reached the conclusion that the complaints regarding the trial Court's approach to the case for the defence are justified. In my opinion the submission for the Appellants that the trial Court misdirected themselves in reaching their verdict, should succeed. And that in view of the evidence as a whole (especially that of the witnesses who saw the escaping culprits at a close proximity) there is no room for the application of the proviso in section 145

(1)(

1. b)of the Criminal Procedure Law. I would allow all four appeals; and quash their convictions. TRIANTAFYLLIDES, J.: In the morning of the 8th of March, 1970, at about 7.05 to 7.10 hours, the President of the Republic, His Beatitude Archbishop Makarios, was taking off from the yard in front of his official residence the Archbishopric in Nicosia—in a helicopter, piloted by Major Z. Papadoyiannis, in order to fly to Macheras Monastery where .he was going to officiate at a church service. Just as the helicopter was gaining height it wasfired at several times from a terrace on the roof of a secondary school, the Pancyprian Gymnasium, which is opposite the Archbishopric, across a road. 66 As a result the helicopter was damaged, its pilot was very seriously wounded, and, with great difficulty, a forced landing was made at an open space in the immediate vicinity. 1971 Mar. 10 The four Appellants before us, A. Charitonos, G. Taliadoros, A. Solomontos and A. Yenagritis, were, after a lengthy trial, found guilty, on the 19th November, 1970 (by an Assize Court in Nicosia composed of the President of the District Court of Nicosia and two District Judges of such Court) in respect of a count charging them with conspiracy to kill the President of the Republic (contrary to section 217 of the Criminal Code, Cap. 154) and in respect of two counts charging them with attempt to kill, respectively, the President and the pilot of the helicopter (contrary to section 214(
2. a)of the said Code). CHARITONOS They were all sentenced to concurrent terms of imprisonment in relation to each count, the longest term in the case of each Appellant being fourteen years' imprisonment in respect of the counts for attempt to kill. It would be useful to refer, at this stage, very briefly, to the main evidence against the Appellants and to what they put forward in their defence:None of the Appellants was identified by eye-witnesses, who saw four persons running away from the scene of the crime, soon after the helicopter had been fired at; but on ammunition-magazines and ammunition found on the aforementioned terrace there were identified finger-prints of Appellants Charitonos, Solomontos and Yenagritis. According to the evidence of Police Superintendent Chr. Dekratis, an expert witness, with twenty years' experience regarding fingerprints, who was called by the prosecution, all the finger-prints in question were found in such condition and circumstances as to lead him to the conclusion that they were recently caused by the persons who had last used the magazines and ammunition. Also, according to the same witness, on a car which was used by the culprits at some stage of their get-away, and which until quite late on the previous night was in the possession of Appellant Taliadoros and was being used by him for trips in Nicosia in the company of Appellant Charitonos, there were identified finger-prints of Appellant Yenagritis which, in the opinion of the witness, were very recent. All the aforesaid finger-prints were examined on the 8th March, 1970, within the space of a few hours after the helicopter had been shot down. 67 ADAMOS A N D OTHERS v. THE REPUBUC Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBLIC Triantafyiiides, J. Appellants Solomontos and Yeragritis were on the date of the crime policemen stationed at Famagusta. They gave evidence explaining how their finger-prints could have been left on a magazine and ammunition in it (one finger-print only of Solomontos was found on a magazine, on the terrace, which contained rounds of ammunition on only two of which were found clearly identifiable finger-prints of Yenagritis) while handling arms, magazines and ammunition in the course of duty; moreover, Yenagritis, regarding his finger-prints on the get-away car, called evidence to show that a few days before the 8th March, 1970, he had searched, while on duty, the said car. Appellant Charitonos (two finger-prints of whom were found on an empty magazine on the terrace) stated in evidence that about the end of 1967 he had handled arms and ammunition while serving in the National Guard. Appellant Taliadoros, very soon after the crime, on the same day, the 8th March, 1970, reported to the police that the get-away car, which had been hired by him and was being used by him for some time past, had been left by him at a parking place just before midnight on the night of the 7th March, 1970, and that when he went to collect it the next morning he found that it had disappeared. He did not give evidence in his own defence but made a statement from the dock. All the Appellants put forward alibis and called witnesses to substantiate them; the alibis of Charitonos and Taliadoros being interrelated, because they stated that they had been continuously together from the previous evening until about an hour after the crime. The learned trial Judges rejected the explanations of Appellants Charitonos, Solomontos and Yenagritis about their finger-prints, the story of Appellant Taliadoros about the get-away car as well as the alibis of all four Appellants; and it was found that all the charges against them had been proved beyond any doubt. All four Appellants appealed against their convictions; but not against the sentences imposed on them. The Supreme Court in dealing with an appeal against conviction, under sub-section

(1)of section 145 of the Criminal 68 Procedure Law (Cap. 155), may dismiss the appeal, may set aside the conviction and convict an Appellant of any offence of which he might have been convicted by the trial Court on the evidence which was adduced, may order a new trial, or it may—under paragraph (b) of the said sub-section

(1)— "allow the appeal and quash the conviction if it thinks that the conviction should be set aside on the ground that it was, having regard to the evidence adduced, unreasonable or that the judgment of the trial Court should be set aside on the ground of a wrong decision on any question of law or on the ground that there was a substantial miscarriage of justice. Provided that the Supreme Court, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the Appellant, shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". Sir Harold Cassel, Q.C., a member of the English Bar—who has led in these appeal proceedings the team of learned counsel for Appellants, but who did not appear at the trial—has not argued that the convictions of the Appellants should be set aside as being, having regard to the evidence adduced, unreasonable, but he has brilliantly conceived and very ably presented an argumentation to the effect that such convictions are wrong in law, because due to a misdirection in relation to the burden of proof coupled with a wrong approach to the evidence for the prosecution and the defence (which approach he has described as "compartmentalization" or "fragmentation" of the case) there has occurred a miscarriage of justice; a miscarriage of a substantial nature excluding the course of dismissing the appeal of any one of the Appellants through the application of the proviso to paragraph (b) of section 145

(1)of Cap. 155. Before proceeding to consider the merits of the present case it is, I think, proper and necessary to deal at some length with the application of the principles of law governing the burden and standard of proof in a criminal case. The effect of these principles may be summarized thus: An accused person is presumed innocent until his guilt is proved beyond reasonable doubt, on a consideration of the case as a whole. Such principles, which are principles of the English common law, have been applicable all along in Cyprus, the common law being still applicable in this respect here. 69 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBUC Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. T H E REPUBLIC Triantafyiiides, J. Also, from 1960 onwards, since Cyprus became an independent State, the said principles have been put into both constitutional and legislative form: Article 12.4 of our Constitution provides that "Every person charged with an offence shall be presumed innocent until proved guilty according to law"; and Article 6

(2)of the European Convention on Human Rights (the provisions of which are applicable in Cyprus, by virtue of Article 169 of the Constitution, ever since the enactment of The European Convention on Rights (Ratification) Law, 1962, Law 39/62,— (see Chrysanthou v. The Police

(1970)2 C.L.R. 95) provides, as the said Article 12.4, that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". In the case of Austria v. Italy the European Commission of Human Rights, in dealing with the presumption of innocence (safeguarded, as stated, by Article 6

(2)of the Convention) stated the following:- (See the 1963 Yearbook of the European Commission on Human Rights, at p. 782):" Bsfore pronouncing on the complaint that the presumption of innocence was not observed in respect of the accused, the Commission feels called upon to explain its interpretation of Article 6

(2)of the Convention. This text, according to which everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, requires firstly that Court Judges in fulfilling their duties should not start with the conviction or assumption that the accused committed the act with which he is charged. In other words, the onus to prove guilt falls upon the prosecution, and any doubt is to the benefit of the accused". It cannot, indeed, be disputed, in my opinion, that Article 12.4 of our Constitution should be construed in the same manner as Article 6

(2)of the Convention. Thus, as already indicated, both by constitutional provision as well as by legislation incorporating into our legal system the corresponding provision of an international Convention, there is being safeguarded for an accused person the benefit of the doubt, as an inevitable implication of the expressly provided for presumption about his being innocent until proved guilty. 70 As far as the common law aspect of the matter is concerned the principles in question are to be found set out in paragraph 1001 of the 37th ed. of Archbold's Criminal Pleading, Evidence and Practice:"

1. General rule. Where the prisoner pleads the general issue, 'not guilty' (see ante para. 461), the prosecution is obliged to prove at the trial every fact or circumstance stated in the indictment which is material and necessary to constitute the offence charged. The general rule is that, apart from any provision to the contrary, the burden of proof of guilt lies upon the prosecution, and it is not for the defence to prove innocence. See the observations of Sankey, L.C. in Woolmington v. D.P.P. [1935] A.C. at pp. 481^82; 25 Cr. App. R. at pp. 95-
2. The appropriate direction now is that the jury must feel sure of the guilt of the defendant before they convict: R. \. Bradbury [1969] 113 S.J. 70, C.A. In that case the Court of Appeal referred to earlier directions relating to prima facie evidence of guilt which called for an explanation from the defendant, and the position which arose when the defendant gave no explanation or, alternatively, gave an explanation which raised in the mind of the jury a reasonable doubt as to his guilt, and stated that though such directions appeared to have been approved in R. v. Stoddart, 2 Cr. App. R. 217, at pp. 242-243; R. v. Garth, 33 Cr. App. R. 100; R. v. Cohen [1951] 1 K.B. 505; 34 Cr. App. R. 239, were likely to cause confusion in the mind of the jury and ought not to be followed". It may be observed, by way of parenthesis, that practically the same approach on this point was, no doubt due to the influence of the English common law principles, adopted by the Supreme Court of the United States of America in Lilienthal v. United States (97 U.S. 237; 24 Law. Ed. 901). A review of relevant case-law in England shows that though the common law principles about the burden of proof in a criminal case have remained unchanged all along, judicial views have tended to vary, from time to time, regarding the exact form of words in which such principles are to be expressed, especially when explained by a Judge to a jury when directing 71 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBLIC Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. T H E REPUBLIC Triantafyiiides, J. them on the point in his summing-up; it has, however, been repeatedly stressed, in this respect, that it is the effect of a summing-up as a whole that matters and not the particular formula of words used by the Judge. I shall refer now to some of the said case-law on these matters:In Woolmington v. D.P.P., 25 Cr. App. R. 72, Lord Sankey, L.C. said (at p. 95):" at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution, so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; heis not bound to satisfy the jury of his innocence. This is the real result of the perplexing case of Schama and Abramovitch [1914] 11 Cr. App. R. 45, which lays down the same proposition, although perhaps in somewhat involved language Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained". In the earlier case of Schama and Abramovitch (supra) Lord •Reading, C.J. had said (at p. 49):" Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the 72 \ possession by the prisoner, and that the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner's guilt. That onus never changes, it always rests on the prosecution". Later on in R. v. Garth, 33 Cr. App. R. 100, Lord Goddard, C.J. referred to the Schama and Abramovitch case (supra) in the following terms (at p. 101):" The only point in the case is that the learned DeputyRecorder in summing-up stated the law far too favourably to the prisoner. He was dealing with Abramovitch's case [1914] 11 Cr. App. R. 45, which seems so often to cause some sort of difficulty. The learned Recorder stated the law in this way: 'Anyway, the prosecution have to prove guilty knowledge, and in the absence of any explanation by the accused man you are entitled to convict him of receiving stolen goods knowing them to have been stolen, if he fails to give an explanation which you can possibly believe. If, on the other hand, he gives an explanation, and that is one which, although you do not think it to be true, you think might possibly be true, then he is entitled to be acquitted'. That was stating the law far too favourably because, of course, any explanation may possibly be true. That is not in the least what Abramovitch's case (supra)lays down. It is not a question whether the prisoner gives an account which may possibly be true, because as I have said, any account may possibly be true. A much more accurate direction to thejury is: 'If the prisoner's account raises a doubt in your minds, then you ought not to say that the case has been proved to your satisfaction'". In R. v. Kritz, 33 Cr. App. R. 169, Lord Goddard, C J . said at (pp. 176-177):73 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBLIC Triantafyiiides, J. 1971 - I0 ~~ Mar CHARITONOS AND OTHERS v. THE REPUBLIC Γι'antafyllides, J . ** The only other point which has been seriously argued is that because the learned Common Serjeant told the jury that they must be reasonably satisfied, and did not u s e t n e w o r ^ s 'satisfied beyond reasonable doubt', he was not stating sufficiently the onus of proof. It would be a great misfortune, in criminal cases especially, if the accuracy or inaccuracy of a summing-up were to depend upon whether or not the Judge or the Chairman had used a particular formula of words. It is not the particular formula of words that matters; it is the effect of the summing-up. If the jury are charged whether in one set of words or in another and are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence, then whether the learned Judge uses one form of language or whether he uses another is neither here not there". In R. v. Summers, 36 Cr. App. R. 14, Lord Goddard, C.J., said (at p. 15):" I have never yet heard a Court give a satisfactory definition of what is a reasonable doubt, and it would be very much better if summings-up did not use that expression, for it seems to me that, whenever a Court attempts to explain what is meant by a reasonable doubt, it gives a definition or tries to explain the term in a way which is often likely to cause more confusion than clarity. It is far better, instead of using the words 'reasonable doubt' and then trying to explain what is a reasonable doubt, to direct a jury; 'You must not convict unless you are satisfied by the evidence that the offence has been committed'. The jury should be told that it is not for the prisoner to prove his innocence,but for the prosecution to prove his guilt. If a jury is told that it is their duty to regard the evidence and see that it satisfies them so that they can feel sure when they return a verdict of Guilty, that is much better than using the expression 'reasonable doubt' and I hope in future that that will be done. I never use the expression when summing-up. I always tell a •• jury that, before they convict, they must feel sure and must be satisfied that the prosecution have established the guilt of the prisoner". 74 In R. v. Murtagh and Kennedy, 39 Cr. App. R. 72, Hilbery, J. said (at p. 83):" Having regard to the evidence, it was pre-eminently a . case where it was essential for the Judge to make clear to the jury three possible positions in which thejury might find themselves, bearing in mind throughout that it was not for the accused to establish their innocence: That is to say

(1)If they accepted the explanation of the accused, they must acquit.

(2)Short of accepting that explanation, if it left them in doubt, they must acquit.

(3)On consideration of the whole of the evidence they must be satisfied of the guilt of the accused of one or other of the crimes alleged against them". In R. v. Blackburn, 39 Cr. App. R. 84, Gorman, J. said (at p. 85):" It is for the Judge to deal properly with the question of the burden of proof. One matter is quite clear. It cannot be said, and this Court does not intend to say, that any particular form of words is sacrosanct or absolutely necessary. The Court is concerned with the question whether, whatever form of words was used, it was made quite clear to the jury that it was for the prosecution to establish the guilt of the prisoner and, if the guilt of the prisoner was not established, the prisoner must, as of right and not by way of favour, be found not guilty. This Court does not subscribe to the view that a particular form of words of necessity means that the summing-up was right or that the absence of a particular form of words necessarily means that it was wrong". In R. v. Hepworth and Fearnley, 39 Cr. App. R. 152, Lord Goddard, C J . said (at pp. 154-155):" Another complaint that is made in this case is that the Recorder used only the word 'satisfied'. It" may be, especially in view of the number of cases recently in which this question has arisen, that I misled Courts when I said in Summers (36 Cr. App. R. 14, at p. 15; [1952] W.N. 185)—and I still adhere to it—that I think it is very unfortunate to talk to juries about reasonable doubt, because the explanations given of what is and what is not a reasonable doubt are so very often extraordinarily difficult to follow and it is very difficult to tell a jury what 75 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBLIC Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBUC Triantafyiiides, J. is a reasonable doubt I, therefore, suggested in that case that it would be better to use some other expression, by which I meant that it should be conveyed to the jury that they should convict only if they felt sure of the guilt of the accused therefore, one would be on safe ground if one said in a criminal case to a jury: 'You must be satisfied beyond reasonable doubt' and one could also say: 'You must be completely satisfied' or better still: 'You must feel sure of the prisoner's guilt". In R. v. Trigg, 47 Cr. App. R. 94, Ashworth, J. said (at p. 99), regarding the need to consider a summing-up as a whole:" but it would be quite wrong, in the view of this Court, to extract that one sentence away from its context, and equally wrong to ignore the fact that at the beginning of his summing-up, and in this passage and again at the end of the summing-up the learned Judge was at pains rightly to emphasise to the jury that it was for the Crown to prove its case. The argument of Mr. Charles,"—counsel for Appellant—"with all respect to him is a classic instance of taking out a single sentence from a perfectly fair summing-up, and treating it as if it stood alone". In R. v. Gill, 47 Cr. App. R. 166, Edmund Davies, J. said (at pp. 172-174):" We now turn to consider the summing-up in the present case. Two passages, in particular, are said wrongly to have placed the burden of establishing the alleged duress upon the shoulders of the accused Taking these two passages in isolation, it has been submitted for the Appellant (

1. a)that the Deputy-Chairman was there wrongly placing the ultimate (or 'persuasive') burden of proof upon the accused, and (
2. b)that, assuming that a burden of any kind rested on the accused, the Deputy-Chairman erred in failing to indicate that such burden was of the less onerous kind indicated in such cases as Carr-Briant [1943] 29 Cr. App. R. 76; [1943] K.B. 607. The Court has anxiously considered these submissions. In the light of them, had the two passages complained of stood alone, we should have felt compelled to quash the conviction on the larceny count, for the reasons already indicated in this judgment. But acceptance of the 76 submissions would involve taking these two passages out of their context and failing to consider the summing-up as a whole Taking the summing-up as a whole, the conclusion this Court has come to is that the verdict ought not to be disturbed. This appeal against the conviction on both counts must accordingly be dismissed". 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC I would refer next to R. v. Holland: R. v. Lazarus(unreported); this summary isfrom [1968] 118New Law Journal at p. 1004: " In R. v. Hollandand R. v. Lazarus,the Applicants appealed against their convictions of assault occasioning actual bodily harm for which each had been sentenced to three months' detention. Their main ground of appeal was that the standard of proof was put to the jury no higher than that the jury must be 'satisfied'. It was held (C.A.: Edmund Davies, L.J., Thompson and Waller,JJ.: August 20, 1968)refusing the applications although the mere use of the word 'satisfied* in the summing-up on the standard of proof required to be attained by the prosecution would result in a real risk of an application being launched in the Court of Appeal on the ground of misdirection, the volume of work of the Court of Appeal would, it was believed, be greatly decreased were the word 'satisfied* never used and the word 'sure' always employed. Nevertheless, in the present case, looking at the summing-up as a whole, the Court was satisfied that the jury were left in no doubt that, before they could convict, they had to be so satisfied as to be sure of the guilt of the Applicants". In Waltersv. The Queen[1969] 2 A.C. 26, Lord Diplock said (at pp. 29-31) in giving the reasons for a decision of the Privy Council:" At the trial of the petitioner the Judge thought it desirable to explain to the jury what was meant by the time-honoured phrase *areasonable doubt'. In the course of doing so he said: 'a reasonable doubt is that quality and kind of doubt which, when you are dealing with matters of importance in your own affairs, you allow to influence you one way or the other'. 77 Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC Triantafyiiides, J. It has for many years been a common practice of Judges in England and other common law jurisdictions when directing the jury on the onus of proof to expand the bare expression 'reasonable doubt' by using this or a similar analogy., On behalf of the petitioner, however, it was contended that a direction in terms such as thesa is erroneous because it invites the jury to apply a 'subjective' test instead of an 'objective' one In their Lordships' view the correctness or otherwise of a direction to a jury on the onus of proof cannot depend upon such fine semantic distinctions The expressions 'objective test' and 'subjective test' are currently in popular use among lawyers, sometimes in contexts in which they are helpful in indicating a meaningful contrast. But in the context of 'doubt', which cannot be other than personal to the doubter, Λ is meaningless to talk of doubt as 'objective1 and otiose to describe it as 'subjective' the use of such analogies as that used by Small, J. in the present case, whether in the words in which he expressed it or in those used in any of the other cases to which reference has been made, may be helpful and is in their Lordships' view unexceptionable. Their Lord­ ships would deprecate any attempt to lay down some precise formula or to draw fine distinctions between one set of words and another. It is the effect of the summingup as a whole that matters". In R. v. Bradbury, 53 Cr. App. R. 217, Edmund Davies, L.J. said (at pp. 219-220):" What the learned Deputy Chairman did here, it is quite clear, was to quote from the second sub-paragraph of paragraph 1001 of the 36th edition of Archbold. It is a very useful passage for the legal practitioner and the Judge to have in mind. It is an amalgam of several citations from the decision of Lord Alverstone, C J . in Stoddart [1909] 2 Cr. App. R. 217. But we venture to think that those portions of it which in particular refer to 'a presumption being raised upon which the jury may be justified in returning a verdict of guilty' are not such as one should contemplate citing to a jury. They are not calculated to help them; indeed they have an un78 fortunate tendency to confuse, rather than to elucidate, and to lead a jury to the conclusion that if an-accused man gives an explanation which they reject, the step towards convicting him is short and well-nigh inevitable. The citation of this somewhat involved passage could nevertheless have been cured had there been, either before or after it, as we have already said, a bald direction in such terms as 'You have to be sure in this case before you can convict' or 'You have to be satisfied beyond all reasonable doubt before you can convict' ". A perusal of directions to the jury regarding the burden and standard of proof, as they are recorded in the full reports of a number of criminal trials (in the Notable British Trials series) which took place after the case of Woolmington (supra) had been decided, such as R. v. Rattenbury and Stoner, R. v. Nodder, R. v. Barnes and Others, R. v. Carraher,R. v. Ley and Smith, R. v. Camb and R. v. Craig and Bentley shows the diversity of expressions used for the purpose. I need not make this rather long judgment even lengthier by quoting the said directions (none of which was found on appeal to be wrong). It suffices to say that such perusal indicates quite clearly that there are bound inevitably to be variations in wording, but not in substance, when different Judges formulate their directions regarding the principles applicable to the matter of the burden and standard of proof in a criminal case. I shall refer, next, to some Cyprus case-law:In R. v. Mentesh, 14 C.L.R. 232, Thomas, J. said (at pp. 244-245):j " Can the burden upon the prosecution be said to have been discharged by evidence equally consistent with the acts from which accused's guilt was inferred having been done by him on a lawful occasion; and equally consistent with their having been done by other persons? In our opinion the answer is emphatically: No. Where the evidence does not exclude the possibility of the offence having been committed by other persons it raises a suspicion only, strong or weak, as the case may be, which fails to satisfy the principle that in a criminal case the guilt of the accused must be proved beyond any reasonable doubt. It was laid down in R. v. Hodge (2 Lew. Q.C 227) that 'where a criminal charge depends on 79 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBLIC Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC Triantafyiiides, J. circumstantial evidence, it ought not only to be consistent with the prisoner's guilt but inconsistent with any other rational conclusion. The principle embodied in this decision is accepted as sound law by the Editors of the English and Empire Digest, Halsbury's Laws of England, and by the following authorities on the law of evidence, Taylor, Wills, Phipson, Best and Roscoe. Two Canadian cases are cited in the English and Empire Digest, the first R. v. Turnbull, whereitwaslaid down asfollows:- 'When circumstantial evidence is relied upon to prove the guilt of any person accused of a criminal offence the circumstances and facts proved to the satisfaction of a jury must be not only such as are consistent with the guilt of that accused person, but must be such as are inconsistent with any other reasonable conclusion except the guilt of that accused person' (14 E. &E. Dig. p. 358). The second case is R. v. Tymko (

(1924)42 Can. Crim. Cases 147) which decides that: 'It is not admissible to convict a person on circumstantial evidence if such evidence can be interpreted to give any other explanation than the accused person's guilt'. (E. and E. Dig., Supplementary No. 9, referring to Vol. 14, p. 358). Taylor says in this connection: 'But, admitting the facts sworn to are satisfactorily proved, a further, and a highly difficult duty still remains for the jury to perform. They must decide, not whether these facts are consistent with the prisoner's guilt, but whether they are inconsistent with any other rational conclusion; for it is only on this last hypothesis that they can safely convict the accused. The circumstances must be such as to produce moral certainty, to theexclusion ofeveryreasonable doubt. Moral certainty and the absence of reasonable doubt are in truth one and the same thing'. Vol. 1, p.

1. There can be no doubt that this principle of law is accepted and applied by the highest Courts in England. In R. v. Wallace (23 Cr. App. R. 32), the headnote is 'The Court will quash a conviction founded on mere suspicion. And in R. v. Bookbinder,reported at p. 59 of the same volume the headnote runs: 'There ought not to be a conviction when the evidence is equally consistent with innocence and guilt'". In Police v. Chrysanthou andOthers,15C.L.R. 50, Stronge, CJ. said (at p. 55):80 " It has been authoritatively decided in several cases that it is an essential principle of English Criminal Law"— such Law being applicable, as already stated, in Cyprus— "that the burden of establishing a prisoner's guilt rests "throughout the trial upon the prosecution but that while the prosecution must prove the prisoner's guilt it is sufficient for him to raise a doubt as to his guilt: He is not bound to establish his innocence. R. v.Schama, 24Cox C.C. per Lord Reading, C.J., at p.
2. Laurence v. The King [1933] A.C. at p.
3. Woolmingtonv. Director of Public Prosecutions [1935] 104 L.J.K.B. at p. 439". In Kafalos v. The Queen, 19 C.L.R. 121,Hallinan, CJ. said (at p. 126):" The position then at the close of the defence was that the accused had failed to prove an alibi and had been unable to give any reason which the Court could accept as to why he was at Saittas on the day of the murder. But the failure of a defence is only fatal to an accused person if the case for the prosecution which remains unshaken by the defence is strong enough in itself to convict the accused". In R. v. Georghiades (No. 2), 22 C.L.R. 128, the need for proof of guilt beyond reasonable doubt, as expounded in the Menteshcase (supra), was relied and acted upon; see in this respect the judgment of Zekia, J. (at pp. 132-135). In the course of such judgment, and while dealing with the question of the burden of proof, Zekia, J. said (at p. 133):" When the presence of intent in an attempt to commit a particular offence is sought 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 isproved or not to saythat this wasa reasonable inference to be drawn from the facts but one must go further and be able to say that that was the only reasonable inference whichcould bedrawn from the facts asfound; iftherebe another reasonable view or probability consistent with innocence capable to be taken on the same facts then the onus ofproving beyond reasonable doubt the existence of the particular intent has not been discharged". 81 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC Triantafyiiides,J. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC Triantafyiiides, J. In Volettos v. The Republic, 1961 C.L.R. 169, Vassiliades, J. said at (p. 180):" the law presumes the accused to be innocent until his guilt be established by the prosecution to the satisfaction of the competent Court, beyond all reasonable doubt " In Pefkos v. The Republic, 1961 C.L.R. 340,Zekia, J. adhered (at p. 352) to his dictum, already quoted, in theGeorghiades (No. 2) case (supra) and Josephides, J. adopted (at p. 368) the following dictum of Lord Goddard, C J . in R. v. Steane, [1947] K.B. 997, at p. 1004:" The important thing to notice in this respect is that where an intent is charged in the indictment, the burden of proving that intent remains throughout on the prosecution. No 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 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 is entitled to be acquitted". In Papaprokopiou v. The District Officer Nicosia and Kyrenia, 1964 C.L.R. 354, Josephides, J. said (at p. 358):" The general rule is that, apart from any statutory provision to the contrary, the burden of proof of guilt beyond reasonable doubt lies upon the prosecution, and it is not for the defence to prove innocence". In Fostieri v. The Republic

(1969)2 C.L.R. 105, Vassiliades, P. said (at p. 112):" The substance of the crime lies in the fact that the death of the victim was caused by the unlawful act or omission of the offender. The burden of proof of all the ingredients of the offence lies, under the law of this country, entirely on the prosecution". 82 The stage has now been reached at which, against the background of the already referred to relevant case-law, there should be considered .more closely the already mentioned arguments which counsel for Appellants has advanced against the convictions of his clients. The following is the part of the judgment of the trial Court from which it has to be gathered, according to the submission of counsel for Appellants, that there exists a misdirection in law regarding the question of the burden of proof:" Before we deal with the case for the defence, we consider it pertinent to dwell briefly with the principles of law relating to the burden of proof in criminal cases which we shall have all along in mind in reaching our conclusions. They are summed up in Archbold, 36th Edition, paragraph 1001 as follows:'The general rule is that apart from any provision to the contrary (which does not exist in the present case) the burden of proof lies upon the prosecution and it is not for the defence to prove innocence. Woolmington v. D.P.P. 25 Cr. App. R. 95-

1. Where the ρΓΟβεΰμΐϊοη gives prima facie evidence from which the guilt of the prisoner might be presumed, and which, therefore, calls for an explanation by the. prisoner and no answer or explanation is given a presumption is raised upon which the jury may be justified in returning a verdict of guilt. But if an explanation is given by or on behalf of the prisoner which raised in the mind of the jury reasonable doubt as to his guilt, he is entitled to be acquitted as the prosecution has failed to satisfy the onus of proof which lies upon them'. As to the explanation of the accused, - the cases of Schama and Abramovitch and the case of Mentesh v. The Police, 14 C.L.R., lay down the principle that the explanation of the accused need not be true, it is enough if it raises a probability. As to the alibi, though customary referred to as the defence of alibi, it is a long standing principle of law that it is upon the prosecution to negative the alibi and because an alibi has been put forward by the defence, no burden 83 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. T H E REPUBLIC Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS v. THE REPUBUC Triantafyiiides, J. is cast on the defence to establish it. The burden lies all along on the prosecution to prove the guili of the accused. Rex v. AllanGeorge Wood, 52 Cr. App. R. page
2. We need not repeat here the principles relating to the circumstantial evidence as we already quoted passages in our ruling on the submission of the defence not to call upon the accused. With these principles in mind, we turn now to the case for the defence". The passage quoted by the trial Court from the 36th ed. of Archbold's Criminal Pleading, Evidence and Practice is the one which in the Bradbury case (supra) was described as not appropriate for use in directing a jury; but it was, on the other hand, expressly stated in the Bradbury case that it is a very useful passage for a Judge to have in mind; and the Appellants were tried by three Judges, as in Cyprus we do not have any provision at all about trial by jury. Counsel for Appellants has observed that from the quotation of the said passage there was omitted the following phrase: "Because if upon the whole of the evidence in the case the jury are left in a real state of doubt"; and he has submitted that this is a pointer indicating how it came about that the trial Judges misdirected themselves as to the burden of proof; in other words, that the omission to quote this phrase shows that they failed to give due weight to a vital aspect of the matter. I cannot agree that any decisive importance should be attributed to such omission. The phrase in question must, obviously, have been read by the learned trial Judges, when they studied the passage concerned in Archbold, and its significance could, certainly, not have escaped their attention; so, though they have omitted it from the text of the passage quoted in their judgment they cannot be regarded as having lost sight of it. In view of the fact that counsel for Appellants has—quiterightly—madeit categorically plain that he did not have the least doubt that the trial Judges have acted in this case in all good faith and he has, also,made it absolutely clear that he did not wish to be misunderstood as suggesting that they were in any way prejudiced against the Appellants, I think that the only rational explanation about the omission to quote the phrase concerned is that such omission occurred 84 due to an effort to abbreviate the quotation of that passage from Archbold by omitting what appeared to be an obvious corollary of the part of such passage which had been already quoted. The main contention of counsel for Appellants on the issue of misdirection as to the burden of proof has been based on the fact that the trial Court, in the part of its judgment which has aready been set out hereinbefore, stated that "the explanation of the accused need not be true, it is enough if it raises a probability" and that it was with this rule in mind that the case for the defence was approached by the trial Court. He submitted that, in effect, the trial Court applied to the case for the defence—including the evidence for the defence about the finger-prints, the car and the alibis of the Appellants—a "probability test" which is incompatible with the correct principles of law governing the burden of proof in a criminal case; he argued that such a test is not at all consistent with the cardinal rule that guilt has to be established beyond reasonable doubt and he contended that the proper test to be applied to the case for the defence-.was the "reasonable possibility test". In order to show that the trial Judges did actually misdirect themselves counsel for Appellants referred to various parts of theirjudgment, where, while dealing with what had been stated, regarding various points, by the Appellants or their witnesses, the trial Court used expressions such as "not natural or even probable", " untrue and improbable", " has not been satisfactorily explained", "cannot be accepted either as true or probable". Mr. K. Talarides, Senior Counsel for the Republic, who appeared for the Respondent and who has impressed me very much indeed by the diligent and learned manner in which he has performed his duty in this case, has argued that if the judgment appealed from is looked upon as a whole it is clear that the trial Judges did not misdirect themselves and that they convicted all four Appellants after having been duly satisfied about their guilt, beyond reasonable doubt, on the totality of the evidence presented at the trial. He has submitted, further, that it cannot be said that there exists an established rule of law requiring the application to the case for the defence, in a criminal trial, of the "reasonable possibility test". 85 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS V. THE REPUBUC Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARITONOS AND OTHERS It cannot, in my view, be disputed that there does exist a difference between what is probable and what is reasonably possible and that such difference is, indeed, very material when it is to be decided whether or not the guilt of an accused person has been established beyond reasonable doubt. V. THE REPUBUC Triantafyiiides, J. This is well illustrated by the following passage from the judgment of Stavrinides, J. in Aristidou v. The Republic

(1967)2 CL.R. 43 (at p. 103):" While on the evidence taken as a whole it is probable that the Appellant formed the intent to kill some time between his stop by the deceased's dwelling preceding the fetching of the gun and cartridges and his setting out to bring these things, the possibility that his intention in setting out to do so was merely to frighten the deceased's husband, which is the version he put forward at the trial, cannot be excluded as being merely fanciful, particularly in view of the trial Court's finding that on that stop the Appellant received no provocation, the deceased's husband having kept completely silent. Indeed, it is impossible to say with any degree of certainty that the intent was formed before his arrival by the deceased's house with the gun and cartridges. On the other hand it is, in my view, clear that the intent existed when the first shot into the dwelling was fired". In the Aristidou case (supra) what had to be decided was whether the Apptllant had been rightly found guilty of premeditated murder and the point of time at which he had formed the intent to kill was, therefore, of vital importance. In the Trigg case (supra), in which the appeal was allowed due to the failure of the Judge in his summing-up to warn the jury regarding the question of corroboration of the identification evidence in a sexual offence case, the Judge clearly adopted the reasonable possibility test when he told the jury, inter alia, that if having looked at him"—the accused—"and heard him, and bearing the other evidence in mind, you were to say to yourselves, 'We really do not know, he may well be speaking the truth,' or 'it may well be reasonably possible that he is speaking the truth,' he is still not guilty, because that means you are in doubt " (see p. 98 of the report of the case in 47 Cr. App. R.). 86 In that case Ashworth, J. in delivering the judgment of the Court of Criminal Appeal said (at p. 98):" If this Court may say so, apart from the topic of corroboration which will be dealt with hereafter, this was a summing-up against which no possible criticism could be directed". 1971 ADAMOS CHARITONOS AND OTHERS v. THE REPUBLIC Furthermore, the danger that the jury had adopted a balance Triantafyiiides, J. of probabilities approach led the Court of Criminal Appeal (with Ashworth, J. being, again, on the Bench) to set aside the conviction in R. v. Biffen; the following summary of this case—which appears to be unreported—is to be found in [1966] Crirn. L.R. p. 111:" Court of Criminal Appeal: Lord Parker, CJ.» Ashworth and Widgery, JJ.: The Times, December 1, 1965. B. was convicted of wounding X.-with intent. The prosecution case was that B. produced a knife and stabbed X. B. denied using the knife and his case was that X. produced it and was somehow injured by it in the course of the struggle. After retiring the Jury sent a note to the Judge asking whether 'if it were at all likely on a balance of probabilities' that X. originally had possession of the knife and that B. came into possession of it during the struggle in such circumstances that he had the opportunity to consider whether or not to use it and then did use it, was B. guilty of wounding with intent. The Judge said that the short answer was yes and then explained the position. Held, as the jury's question showed that for some purpose they had the balance of probabilities in mind, the Judge should have redirected them on the burden of proof. The conviction would be quashed but their Lordships would exercise their powers as justices of the peace and bind over B. in the sum of £25 to keep the peace for twelve months . In Bullard v. The Queen, 42 Cr. App. R. 1, Lord Tucker, giving the reasons of the Privy Council in relation to allowing an appeal from the Court of Criminal Appeal of Trinidad and Tobago, said (at p. 7):87 1971 · M a r 10 — CHARITONOS AND OTHERS v. THE REPUBUC Triantafyiiides, J. " In the present case the fact that the jury rejected the defence of self-defence does not necessarily mean that the evidence for the defence was not of such kind that, even ^ n o t a c c e P t e d in its entirety, it might not have left them in reasonable doubt whether the prosecution had discharged the onus which lay on them of proving that the killing was unprovoked. Their Lordships do not shrink from saying that such a result would have been improbable, but they cannot say it would have been impossible". This dictum of Lord Tucker in the Bullard case (supra) was referred to with approval by the Court of Criminal Appeal of New South Wales, Australia, in R. v. McKenna

(1964)81 W.N. (Pt. 1) (N.S.W.) 330, at p.

1. The relevant part of the trial Judge's direction to the jury in the McKenna case appearsfrom thejudgment of McCIemens, J. who said (at pp. 332-333):" There is another matter to which exception was taken in the summing-up and that is the passage: 'If the evidence is so strong against an accused man as to allow only a remote possibility in his favour which, when considering the matter in the jury room, you can dismiss with this sentence 'Of course it is possible but not in the least probable' then the case is proved beyond reasonable doubt'. So far as his Honour is concerned he was there no doubt founding himself on a dictum by Denning J., as he then was, in the case of Miller v. Ministry of Pensions [1947] 2 All E.R. 372, at p.
2. It is not necessary for me to read the passage nor to read the comments on the passage which appear in Glanville Williams, Criminal Law, 2nd ed., p. 873, par.
3. But it does appear that this passage is not consistent with what the Privy Council said in Bullard v. The Queen

(1958)42 Cr. App. R. 1, at p.7,where,speaking for theboard, LordTuckersaid: 'Their Lordships do not shrink from saying that such a result would have been improbable, but they cannot say it would have been impossible'." The Miller case, which is described by McCIemens, J., in the aforequoted extract from hisjudgment, as being inconsistent with the Privy Council's decision in the Bullard case, has been cited to us, in the present case by counsel for the Respondent 88 in support of his argument against the notion of the reasonable . possibility test. 1971 Mar. 10 I think that the correct position is very well stated in the judgment of Macfarlan, J. in the McKenna case (supra), at p. 334):- ADAMOS CHARITONOS AND OTHERS " 1 also think that the learned chairman was in error in this case in the direction that he gave, * Of course if it is possible but not in the least probable, then the case is proved beyond reasonable doubt, but nothing short of that will suffice'. This sentence which I quoted from the summing-up was put by the chairman to the jury as a question which they should ask themselves when having reviewed the evidence they should then be faced with the decision as to whether he was guilty or not. I realize, of course, the word 'possible' follows on references by the learned chairman to 'fanciful possibilities' and to 'a remote possibility' appearing in an earlier sentence but I think the whole matter to the minds of a jury listening to the learned chairman would be crystalhVed with this sentence which he put, ' You disregard possibilities you consider the probabilities'. / do not think myself that the burden of proof is concerned with distinctions between possibilities and probabilities. I myself think that a jury may still have a reasonabledoubt although that uponwhich they found their conclusion is only a reasonablepossibility of innocene. If they think there is that reasonablepossibility that it is one which arises from the evidence or the absence of evidence then I think it is one whichto thejury would raise a reasonabledoubt as to the guilt of the accused". I have underlined the last lines in the above quotation because I do think that they deserve to be given quite some emphasis. A reasonable possibility being, thus, sufficient to raise a reasonable doubt as to the guilt of an accused person, there has, now, to be decided the issue as to whether or not, in the present case, the statement by the trial Judges, in their judgment, that "the explanation of the accused need not be true, it is enough if it raises a probability", and the use of expressions relevant to the notion of probability in various parts of such judgment which deal with the case of the defence, 89 v. THE REPUBLIC Triantafyiiides, J. 1971 Mar. 10 do establish a misdirection of law as regards the burden of proof: ADAMOS In deciding this issue it has to be borne in mind that the manner of approach by an appellate Court to the question as to whether or not there exists a misdirection regarding the burden of proof in a judgment delivered in a criminal case tried without a jury cannot be exactly the same, due to the different nature of the respective proceedings, as the manner of approach to the question as to whether or not there exists such a misdirection in a criminal case tried by a Judge sitting with a jury. CHARITONOS AND OTHERS v. THE REPUBLIC Tnaniafyliides, J. Though, of course, both a judgment delivered after a trial without ajury and a summing-up to ajury have to be examined as a whole and no fine distinctions should be made between one set of words used and another, a summing-up is to be scrutinized more strictly than a judgment regarding the matter of the direction as to the burden of proof; this is so because in the judgment there is to be found both such direction as well as its actual application by the trial Court, which can be ascertained through perusing the reasoning in support of the verdict of the Court (and in Cyprus such reasoning is essential both by virtue of Article 30.2 of the Constitution and section 113

(1)of Cap. 155). In the case of a summing-up, however, there should be left no doubt that it was such as to convey to the jury the proper direction in a way excluding any misunderstanding of it on their part, because the verdict of a jury is not reasoned and, thus, there is no means of finding out howthe direction asto the burden of proof affected their deliberations. I am, therefore, of the view that expressions regarding the burden of proof in a judgment may, in a proper case, be construed more liberally and with less anxiety than corresponding expressions in a summing-up to a jury. The cautious approach of an appellate tribunal to the matter of the burden of proof where a criminal case has been tried with a jury is illustrated not only by cases already referred to earlier, such as the Biffen case (supra), but also by R. v. Oliva, 46 Cr. App. R. 241, in which Lord Parker, C J . said at (p. 243):" the learned Judge in passage after passage of the summing-up said that they must be sure that the prisoner was guilty, and right at tfie end of his summing90 up he said: 'You have got to be sure that the defendant is guilty before you can find him guilty,' and again, 'You must as I say acquit this man unless you are sure that he is guilty.' On the other hand, in no passage in the summing-up did the learned Judge ever use any words to show that it was for the prosecution to prove their case, or words to the effect that the burden of proof was on the prosecution this Court feels that it is a cardinal principle of our law that the burden of proof is on the prosecution; that it has become almost a rule of law that the jury in every case should be told that that is the law; and that nothing we say should be thought in any way to whittle down that principle the Court feels that the principle in issue is so important that it has no option but to quash the conviction". I venture to say that in the Oliva case (supra) the conviction might not have been quashed had it resulted after a trial by a Judge, or Judges, without a jury. In Demetriou v. The Republic, 1961 C.L.R. 309, in relation to the matter of corroboration of an accomplice's evidence—which is a matter directly related to the proof of guilt beyond reasonable doubt— O'Briain, P. said (at p. 312):" The law and practice in England with respect to such matters have evolved down the years in Courts where the verdict is given by Juries composed of laymen not versed in the law. There, the Court of Criminal Appeal has to be satisfied that the Jury were properly instructed as to the law applicable in each particular case, a matter which is to be gathered from the terms of the Judge's charge or directions appearing upon the record. In applying this part of English Criminal Law to Cyprus, where the Court delivering the verdict consists of one or more professional lawyers recognition must be given to the difference of circumstances. In my opinion, this Court, in such cases, should impute to the trial Court a full and accurate knowledge of the law, unless the contrary appears upon record. Nevertheless, this Court must, in all cases without exception, be satisfied that the trial Court adverted to the law applicable and applied its knowledge in the course of the trial and, in particular, to its judgment and verdict. The imperfections of the human memory are many and diverse and an Appellate Court should not assume that in every case the law has been recollected 91 1971 Mar. 10 ADAMOS CHARITONOS A N D OTHERS v. THE R E P U B U C Triantafyiiides, J. 1971 Mar. 10 ADAMOS CHARTTONOS AND OTHERS v. THE REPUBLIC and applied even by trained lawyers unless the record affirmatively shows this to be the case". That trial Judges, deciding a case without a jury, are to be taken to have had in mind the proper principles regarding the burtien of proof, unless the contrary appears from the record, was repeated in Kalli v. The Republic, 1961 C.L.R. 440, by O'Briain, P. who said (at p. 444):- Triantafyiiides, J. " Mr. Clerides"—cousel for Appellant—"argued that the judgment 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 probabilities. We have carefully read, more than once, t