1973 Sept. 25 ANDREAS MICHABL fTftlANTAFYLLIDES, P., L. LOIZOU, MALACKTOS, JJ.] ANDREAS MICHAEL ORPHANOU, Appellant, ORPHANOU v. *-. THE POUCB THE POLICE, Respondents. {CriminalAppealNo.3459). Credibility of witnesses—Appeal turning oncredibility of witnesses— Principles uponwhich the Courtof Appealwill approach such appeals wellsettled—Convictionfor criminal trespass resting on theevidenceofasoleprosecution eye-witness—Natureofevidence issuch thatit was unsafe to beactedupon by thetrialCourt in convicting the Appellant—Conviction quashed. Witnesses—Credibilityof—Appealsturningoncredibilityofwitnesses— Approach of theCourt of Appeal—Seefurther supra. The facts of this case are set out in thejudgment of the Court, allowing this appeal against conviction resting on the evidence of the sole prosecution witness, the Supreme Court holding that the nature of this evidence was such that it was unsafe to be acted upon. Cases referred to: Economides v. Zodhiatis, 1961 C.L.R. 306, at p.
- Appeal against conviction. Appeal againstconviction byAndreas Michael Orphanou who was convicted on the 29th May, 1973, at the District Court of Nicosia (Criminal Case No. 29/73) on one count of the offence of criminal trespass contrary to section 280 of the Criminal Code, Cap. 154and was sentenced by Anastassiou, Ag. D.J. to pay a fine of £20.- and he was further bound over in the sum of £100- for one year to be of good character and behaviour. K. Talarides, for the Appellant. A. Frangos, Senior Counsel of the Republic, for the Respondents. 260 The judgment of the Court was delivered by:TRIANTAFYLLIDES, P.: The Appellant has appealed against his conviction of the offence of criminal trespass, contrary to section 280 of the Criminal Code, Cap.
- He wasconvicted on the 29th May, 1973,bythe District Court of Nicosia; he was sentenced to pay a fine of £20 and was bound over in the sum of £100.for one year to be of good behaviour. The basic issue which has been raised in this case is whether the Appellant is the person who was seen in the yard of the house where the offence in question was committed; in this house there was residing at the time prosecution witness Androulla Loizou who, according to her evidence, saw the Appellantjumpingoverthefence oftheyard and runningaway. She is the only eye-witness in this case and so it is very important to be sure that her evidence could be safely relied on as establishing that the person who was seen by her in the yard andjumping over the fence was, indeed, the Appellant. There is no doubv that the fact that immediately afterwards the Appellant wasseen by the said witness in the street outside her house, as well as the fact that his explanation about his presence in the street was not fully borne out by other proved facts, create naturally a lot of suspicion against him. Also, it is wellestablished that this Court does not normally interfere in the matter of the credibility of a witness whose evidence has been accepted as correct by the trial Court; there must, indeed, exist good grounds to justify such interference (see, interalia,Economides v. Zodhiatis, 1961 C.L.R. 306, at p..307). Wehavereached theconclusion, inthelight ofthearguments advanced in this appeal, that the nature of the evidence of the sole prosecution eye-witness is such that it was unsafe for it to be acted upon in convicting the Appellant and that it is,therefore, necessary to set aside his conviction on this ground: In forming this view we have borne in mind that there was no illumination of any kind in the yard or near the fence; there was no moon; it was simply a starlit night; and yet the said witness stated that shepositively identified theAppellant during "a few seconds" while he was jumping over the fence of the 261 1973 Sept 25 ANDREAS MICHAEL OKPHANOU V. THE.POLICE 1973 Sept. 25 ANDREAS MICHAEL ORPHANOU v. THE POLICE yard in order to get away from there; moreover, she insisted that, in those circumstances, she managed to see clearly the colour and shape of his shirt (she said that it had longsleeves). In our opinion it is quite probable that she said that it was theAppellant who wasseenbyherin the yard because shesaw him later in the street; and it was then that she noticed the colour and shape of his shirt. In the light of theforegoing thisappeal is,therefore, allowed. Appeal allowed. 262