clr/1977/1977_2_312.pdf

(1)and

(2)of the Evidence Law, Cap. 9. 5 Wife—Competence as witness—Husband charged with common assault against her—See, also, under "Evidence". The respondent in these proceedings was charged* with common assault against his wife. On the application of Counsel for the prosecution the trial Court referred, by means of a Case 10 Stated under section 149 of Cap. 155, the following question of Law: " Whether the charge of common assault charges the accused husband (the respondent in these proceedings) of the complainant with inflicting or attempting to inflict 15 any bodily injury, or violence upon her, in the sense of section 14

(2)(a) of the Evidence Law, Cap. 9". The trial Judge answered this question in the negative. Section 14

(1)and

(2)of the Evidence Law, Cap. 9 reads as follows: "14.

(1)Subject to subsection

(2), in criminal proceedings The relevant charge read as follows: "Common assault, contrary to section 242 of the Criminal Code, Cap.

1. Particularsof offence: The accused at the time and place in count 1, hereof mentioned, did unlawfully assault one Themis Papasawa of Nicosia". 312 20 1977 May
2. against any person, the husband or wife, as the casemay be, of such person shall not be a competent witness for the prosecution against that person nor a compellable witness against any other person jointly charged with him or her. NICOSIA POLICE v. THEODOROS PAPASAWA

(2)The husband or wife of a person charged— (

1. a)with inflicting or attempting to inflict any bodily injury or violence upon him or her or upon any of his or her children; 10 (
2. b)withanoffence underanyofthesectionsoftheCriminal Code, set out in the Schedule to this Law, or under section 54 of the Children Law, shall be a competent'witness for the prosecution against the person so charged and a compellable witness against any other person jointly charged with him or her. 15 '

(3)Held,per Triantafyllides, P., L. Loizou and Malachtos,JJ. concurring: 20 25 30 35

(1)That the proper course for deciding whether a wife, in a case of this nature is a competent witness is to look at the charge as framed, because it is not really feasible to link the matter ofhercompetence asa witnesswith theparticular circumstances of each individual case.

(2)That in construing the said section 14

(2)(a) it is useful to refer to the corresponding situation in England because s. 3 of Cap. 9provides that " every Court, in theexercise of its'jurisdiction in anycivil orcriminal proceeding, shallapply, sofar as'circumstances maypermit,thelawand rulesofevidence as in force in England onthe 5thday ofNovember, 1914"(R.v. Wakefield,168 E.R. 1154 at p. 1156; The King v.Lapworth [1931]1 K.B. 117at p. 121and R. v.Blanchard[1952]1 All E.R. 114 at p. 115 cited with approval).

(3)That among the primary objects of a provision such as section 14

(2)(a) must be the protection of both the interests of the wife as well as the interests of justice, especially in cases where the wife is the only witness against her husband.

(4)That it issufficient, in order to render thewife a competent witness under section 14

(2)(a), if the charge discloses prima 313 "- 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA facie that the accused husband has inflicted or attempted to inflict bodily injury, or violence on her (see Naylon v.Police, 1961 C.L.R. 254 at pp. 260, 261 per Zekia, J.); that the charge as framed against the respondent should be treated as charging him with inflicting or attempting to inflict bodily injury, or violence upon his wife, as the complainant; and that, accordingly, she is a competent witness by virtue of s. 14

(2)(a) of Cap. 9. 5 Per Hadjianastassiou, J.: That having regard to the offence, which itself is concerned 10 with "bodily injury", and to the wording of the charge and having regard to the case-law, which lays down that in actual assaults the evidence of the wife against her husband is admissible, the trial Judge came to a wrong determination regarding the meaning of the word "assault"; that in the circumstances of 15 thiscase itwould bereiterated that intheordinary languageand in the verbal sense as used in the charge, the word "assault" definitely indicates battery actually committed or an attempt to commit battery (opinion of Zekia J. in Naylonv. Police,1961 C.L.R. 254 at pp. 260-261 adopted). 20 Per A. Loizou, J.:

(1)That thethreattoinflict unlawful force uponanotherwhich iscontained intheoffence ofcommon assault,bringsthis offence within the exceptions set out in section 14

(2)(a) of Cap. 9, and in particular, within the alternative of "attempting to inflict 25 any bodily injury or violence upon him or her "

(2)That the fact that a common assault is constituted notwithstanding that the threatener did not intend to apply the threatened force, doesnot change the position, as the actus reus of assault, consists inthe expectation of physical conduct which 30 theoffender createsinthemind ofthe person whom hethreatens and the mens rea consists in the realisation by the offender that his demeanour will produce that expectation (see Russel on Crime, 11th ed. Chapter 37); and that it is an offence which involves as such, the infliction or an attempt to inflict injury or 35 at least violenceon theperson and as such,whenit iscommitted as against a spouse, it falls within the exception. Rulingof trial Judge set aside; case remitted tohimwith opinion that wife is a competent witness. 40 314 Cases referred to: R. v. Wakefield and Others, 168 E.R. 1154 at p. 1156; King v. Lapworth [1931] 1K.B. 117 at p.-121; R. v. Blanchard [1952] 1All E.R. 114 at p. 115; Naylon v. Police, 1961 C.L.R. 254 at pp.257,258, 259,260,261; Reevev. Wood[1864] Cox. C.C. 58 at p. 59; Leach v. Rex [1912]A.C. 305 at pp. 309; Directorof PublicProsecutions v. Blady [1912] 2 K.B. 89 at pp. 90, 91, 92; ΙΟ 15 20 R. v. LordMayorof London [1885-1886]16Q.B.D.772 at p.

1. Case Stated. Case Stated by Boyiadjis, S.D.J, (a Judge of the District Court of Nicosia) relative to his decision dated the 7th October, 1976 in Criminal Case No. 18402/76 whereby he ruled' that the wife of the accused in a criminal case is not a competent witness against her husband, as an accused person charged with common assault against her. CI Antoniades, Counsel of the Republic, for the applicants; E. Markidou (Mrs), for the respondent. Cur. adv. vult. The following decisions were read:- 25 P.: In the present case the Supreme Court is dealing with a point of law which has been referred to us for our opinion by means of a Case Stated under section 149 of the Criminal Procedure Law, Cap. 155, on the application of Counsel for the Attorney-General of the Republic, in criminal case No. DCN 18402/
2. 30 The point of law in question is whether a wife—in the present instance the wife of the accused in the aforementioned criminal case—is a competent witness against her husband, as an accused person charged with the offence of common assault against her, contrary to section 242 of the Criminal Code, Cap.
3. TRIANTAFYLLIDES, 35 The relevant legislative provisions are subsections

(1)and

(2)of section 14 of the Evidence Law, Cap. 9, which read as follows:"14.

(1)' Subject to subsection

(2), in criminal proceedings against any person, the husband or wife, as thecase may be, of such person shall not be a competent witness for the 315 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA 1977 May 27 •NICOSIA POLICE v. prosecution against the person nor a compellable witness against any other person jointly charged with him or her.

(2)The husband or wife of a person charged— THEODOROS (

1. a)with inflicting or attempting to inflict any bodily injury or violence upon him or her or upon any of his or her 5 children; PAPASAWA Triantafyllides P. (
2. b)with an offence under any of the sections of the Criminal Code, set out in the Schedule to this Law, or under section 54 of the Children Law, shall be a competent witness for the prosecution against 10 the person so charged and a compellable witness against any other person jointly charged with him or her. ".

(3)r what has to be decided on the present occasion is whether the charge of common assault, involved in the above criminal 15 case before the District Court of Nicosia, amounts to charging the accused husband (who is the respondent in the present proceedings before us) with "inflicting or attempting to inflict any bodily injury or violence upon" his wife, as the complainant in the case,in the senseof subsection 2(a)of section 14of Cap. 9. 20 The learned trialjudge answered this question in the negative, as follows :" I, being of opinion that, unless a case as charged can be clearly brought within one of the two classes of exceptions in Section 14

(2)of the Evidence Law, a wife or husband is 52 an incompetent witness against her or his spouse, have ruled that the offence of common assault examined per se with reference onlyto thecharge as framed in these proceedings does not fall within the aforesaid exception with the certainty required in criminal proceedings so as to by-pass 30 the prohibition set out in section 14

(1)of Chapter 9. In arriving at the aforesaid opinion I considered myself bound to follow the interpretation of Section 14

(2)of the Evidence Law Cap. 9 and of the word 'assault" accepted by the majority decision in the case of Andreas Georghiou 35 alias Naylon v. The Police

(1961)C.L.R. 254". In Naylon, supra, the then High Court of Justice held, on appeal, by majority, that a charge of common assault does not, 316 perse, clearly involve,the element of bodily injury or violence and, consequently, to charge a person with common assault and nothing more, does not, by itself, allege against the accused the infliction of.bodily harm or violence, or an attempt to inflict 5 bodily harm or violence, in the sense of section 14

(2)(a) of Cap. 9; and that,' therefore, in such a situation, the wife, as a complainant, is not a competent witness in a criminal trial against her husband, as the accused. The majority in that case was a "technical one", in that the 10 Members of the High Court were equally divided on this point; the President, O'Briain P. and another Member, Vassiliades J., as he then was, were of the above opinion, but two other Members,ZekiaJ., as he then was,and Josephides J.were of the contrary view; and the majority was secured because its Presir 15 dent had, under Article 153.1 of the Constitution, two votes. A perusal of the judgments in the Naylon case, supra, shows that Vassiliades J., reached his conclusion because he was "inclined to the view that in the circumstances of this particular trial, the wife was not a competent witness at the time she.was 20 called" (see p. 264); on the other hand, all·the three other Members of the Court based their opinions mainly on the charge itself. 25 ::. 30 \r_ 35 I am of the view that the proper course for deciding whether a wife, in a case of this'nature, is a competent witness is to look at.the.charge as framed, because it is not really feasible to link the matter of her competence as a witness with the particular circumstances of each individual case. That the contents of the charge have to'be regarded as the determining-factor becomes plainly obvious when one invisages a case in which the husband is charged with common assault against his wife and the wife is the only witness for the prosecution: In such a case either she is to be.treatedas a competent witness and she will testify as to what has happened or if she is treated as an incompetent witness then the,case cannot be proceeded with at all due to the absence of evidence; it is; therefore; necessary to decide, on the basis of the charge, whether or not she isa competent witness! In the present instance the relevant charge is the second count in the charge sheet, and it reads as follows:'; 40 . . " Common·assault, contrary to Section.242 of the Criminal . Code, Cap. 154.. . .PARTICULARS OF OFFENCE · ·; The accused at the time and place in/count VI, hereof 317 1977 May 27 NICOSIAPOUCB v, THEODOROS PAPASAWA Triantafyllidcs,P. 1977 May27 NICOSIA POLICE V. THEODOROS PAPASAWA Triantafyllides,P. metioned, did unlawfully assault one Themis Papasawa of Nicosia". The question of law to be answered is whether the above charge of common assault charges the accused husband of the complainant with inflicting or attempting to inflict any bodily injury, or violence upon her, in the sense of section 14

(2)(a) of Cap. 9. 5 As it is provided by section 3 of Cap. 9that "Save in so far as other provision is made in this Law or has been made or shall be made in any other Law in force for the time being, every 10 Court, in the exercise of itsjurisdiction in any civil or criminal proceedings, shall apply, so far as circumstances may permit, the law and rules of evidence as in force in England on the 5th day of November, 1914"it isuseful to refer to the corresponding situation in England in trying to construe the terms used in our 15 own section 14

(2)(a) of Cap. 9. JnR.v. Wakefield and others, 168 B.R. 1154, Hullock B. said (at p. 1156):" A wife is competent against her husband in all cases affecting her liberty and person. This was decided in 20 Lord Audley's case, having been, before that, for a long while doubted: but it has since been established by a long series of cases, that she may prosecute, exhibit articles of the peace, & c. 'It would be unreasonable to exclude the only person 25 capable of giving evidence in certain cases of injury: our law recognises witnesses ex necessitate; and it would be strange, indeed, that the husband should be allowed to exercise every atrocity against the wife, and her evidence not be admitted' ". 30 In The King v. Lapworth, [1931] 1 K.B. 117, Avory J. said (at p. 121):"The question that has been raised and argued before us is whether in a case charging personal violence as having been used by a wife to her husband or by a husband to his 35 wife, the husband or wife, as the case may be, is not only a competent but a compellable witness for the prosecution. There is no doubt that at common law the husband or wife • was always a competent witness in such a case, and by the 318 5 very nature of things it.must have-been so, for otherwise, where the assault was committed in secret by one spouse upon the other, there would be no means of proving it. Whatever the reason, we are satisfied-that at common law thewifewasalwaysacompetent witnessfor theprosecution when the charge against her husband was one of having assaulted her". .In R. v. Blanchard, [1952]1 All E.R.114, Ormerod J.said (at p. 115):. . 10 15 " The object of.the'exception isthat incases of this kind— cases where violence is offered, for instance, by a husband to a wife—it must frequently happen that the only person able togiveevidenceagainst thehusband isthewife herself. If she were not a competent witness, clearly the ends of justice would be defeated". It appears from the abovejudicial exposition in England that among the primary objects of a provision such as our own section 14

(2)(a) must be the protection of both the interests of the wife as well as"the interests of justice, especially in cases 20 where the wife is the only witness against her husband; and it must be stressed, in this respect, that the said section 14

(2)(a) renders the wife a competent witness also in cases where the victims are her children. In construing, therefore, the wording of section 14

(2)(a), the 25 said primary objects must not be lost sight of, and it is for this reasonthatIamoftheviewthatitissufficient, inordertorender .thewifea competentwitnessunder section 14

(2)(a);ifthecharge discloses prima facie that the accused husband'has inflicted or attempted to inflict bodily injury, or violence on her. 30 35 The above view is, in my opinion, clearly supported by what •Zekia J. said inthe Naylon case,supra (at pp.260,261):" I do not think, however, that thecharge as it stands does not disclose bodily injury, violence or attempt to commit the one or the other. It is true that the common assault as a legal term comprises offences not necessarily involving bodily injury, violence or attempt to commit either but in the ordinary language and in the verbal sense as used in the charge the word 'assault' definitely "indicates battery, actually committed, or attempt to commit battery. 319 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA Triantafyllides, P. 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA Triantafyllides, P. A charge isexpected under section 39(c) of the Criminal Procedure Law to be framed in the ordinary language and there is no reason to assume therefore that the words 'did unlawfully assault' occurring inthechargepreferred against the appellant meant anything else than causing bodily injury or violence to his wife or an attempt to commit either. Archbold in connection with an indictment for common assault givesthe particulars for the offence as follows: ' A.B. on the in the County of assaulted G.N.'. day of That also indicates to my mind that the word 'assaulted' is normally used in the ordinary language as meaning beating or attempting to beat. I would indeed have expected a clear indication in an indictment had thenature of assault with which a personis charged been a technical onesuchasfalse imprisonment or unlawlul detention". In the Naylon case the charge was as follows (see pp. 257, 20 258):" 'Assault common, contrary tosection 242ofthe Criminal Code, Cap.

1. PARTICULARS OF OFFENCE: The accused on the 28th day of May, 1961, at Limassol in the District of 25 Limassol, did unlawfully assault Chrysanthi Andreou of Limassol' ". In the light of all theforegoing I havereached the conclusion in the present case, too, that the charge as framed against the respondent, as an accused person, should betreated ascharging 30 therespondentwithinflictingorattemptingtoinflictbodilyinjury, or violence upon his wife, as the complainant, and, therefore, she is a competent witness by virtue of the aforementioned provisions of Cap.
2. Consequently, the decision of the trial Judge to the contrary, 35 which has led, in the present instance, to the acquittal of the respondent, inview ofthefact that ashiswifewastreated as an incompetent witness the prosecution failed to establish a prima 320 10 15 facie case against him, is, hereby, set"aside, and the matter is remitted to the.trial Judge with the opinion that.the wife is a competent witness, and the criminal case in question should be proceeded with to be determined by him on that basis. 1977 a ^_ NICOSIAPOLICE v. THEODOROS 5 •STAVRINIDES, J.: Having ruled that the accused's wife was PAPASAWA not a competent.witness agiinst her husband the learned trial — Judge went on to discharge him on the.ground that no prima Triantafyilides,P. facie case had been made out against him. The ruling of incompetence was based on the Judge's construction of the 10 "assault" charge, which he rested on what he calls the "majority " decision of the Supreme Court in Georghiou, alias Naylon v. Police, 1961 C.L.R. 254: I do not propose going into that aspect of the matter; because in my view the statement of the case is incomplete, for in disregard of the requirement of the 15 third paragraph of the form prescribed by the Criminal Procedure Rules, which reads "The facts found by me were: (set out facts so far.as necessary to raise any point of lawinvolved) ", the Judge"simply says "The complainant Themis Papasavva named in the charge is the lawful wife of the accused. This is 20 a fact admitted by all concerned". •! • In the circumstances I would send the case back to the Judge under s. 149

(6)(

1. d)of the Criminal Procedure Law, Cap. 155, for amendment by.the addition of the missing information. L. Loizou, J.: I have read in advance the opinion delivered 25 by the President of the Court, with which I am in full agreement, and there is nothing that I can usefully add. . HADJTANASTASSIOTT, J.: The question posed in this case stated is whether in a case charging personal violence against the wife by the husband, the wife isa competent witness for the prosecu30 tion. , The facts of this case are simple. On 7th October, 1976, the accused, when charged before the trial Judge with threatening violence under s. 91(
2. c)of the Criminal Code Cap. 154,and with common assault'under s. 242 of Cap. 154, he pleaded not guilty 35 to both counts. The prosecution sought to call the wife of the accused, who was ready and willing to testify against him in support.of the charge, and the.question arose whether the wife was a competent witness to.give evidence against her husband in a criminal case. .There is no doubt.that.at common law the 40 husband or wife was always,a competent witness in such a case, 321 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA Hadjianastassiou, J. and by the very nature of things it must have been so, for otherwise, where an assault was committed in secret by one spouse upon the other, there could be no means of proving it. Counsel on behalf of the accused submitted that this case is governed by s. 14 of the Evidence Law,Cap.9, and argued that 5 the wife is not a competent witness to give evidenceand because the case was not within the provisions of sections 14,which says that:"14.

(1)Subject to subsection

(2), in criminal proceedings against any person, the husband or wife,as the case may be, 10 of such person shall not be a competent witness for the prosecution against that person nor a compellable witness against any other person jointly charged with him or her.

(2)The husband or wife of a person charged— (

1. a)with inflicting or attempting to inflict any bodily injury or violence upon him or her or upon any of his or her children; (
2. b)with an offence under any of the sections of the Criminal Code, set out in the Schedule to this Law, or under section 54 of the Children Law, 15 20 shall be a competent witness for the prosecution against the person so charged and a compellable witness against any other person jointly charged with him or her." It appears that for the prosecution to succeed under this subsection 2(
3. b)bodily injury or violence must be proved, and 25 in order to answer this question, one has to look particularly at the wording of the particulars of the offence of common assault where it is stated that the accused did unlawfully assault one Themis Papassava of Nicosia (his wife). In England, this question has been decided, and theauthorities 30 which I propose to quote show that in cases of assault or abduction which involve an injury to the person or to the health or liberty of the wife, a wrong done to her against her will, then the wife could give evidence on the charge. In Reeve (App.) v. Wood (Resp.) [1864] Cox C.C. 58, 35 Crompton J., dealing with the question as to whether a wife is an admissible witness against her husband in support of a charge of desertion of wife and children, said at p. 59;322 10 15 20 · ',· 25 " I think in this case that the magistrates decided rightly. In very early times an exception was made to the general rule that a wife wasnot admissible as a witness against her husband in the case of personal wrongs of the wife. That arose partly on account of the mischief that would result if evidence could not be got in such cases where great brutality may have existed, partly from necessity, and because the wife was the real party prosecuting, and ought to be heard. I do not think, however, that the present case is within that exception. The case of the abduction of a woman is,distinguishable, and has been considered as in the nature of a personal injury. In the present case .there is nothing that can be called an injury to the person of the wife " Blackburn, J., delivering a separate judgment, said:" I am of the same opinion. The general rule is that a wife is not admissible as a witness for or against her husband, except in civil cases. But in criminal matters, from an early period, beginning with Lord Audley's case, 1 St.Tr. 393,therewasanexception to therule,whichwent on the principle that where the offence charged touches the personofthewife,andshemustbecognisant ofit, andmay be the only person who is cognisant of it, there the wife isan admissible witness against her husband. That applies to all cases where there ispersonal violence inflicted by the husband on the wife." InLeachv.Rex, [1912]A.C.305, Earl Loreburn L.C.,dealing " with the provisions of s. 4 of the Criminal Evidence Act 1898, said.at p. 309:30 35 , 40 "...It isvery desirable that ina certain class ofcasesjustice should not be thwarted„by the absence of the necessary evidence, but upon the other hand it is a fundamental and old principle to which the law has looked, the/ you ought not to compel a wife to give evidence against her husband in matters of a criminal kind. It isnot our duty tOTdayto consider consequences at all. What we have to consider isthemeaningofthelawthat hasbeenlaid downintheAct of 1898. My Lords, this appellant was indicted and wasconvicted -for an offence under the Incest Act. In.the course of that 323 1977 May 27 NICOSIA POLICF v. THEODOROS PAPASAWA Hadjianastassiou, J. 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA Hadjianastassiou, J. trial his wife was called and asked to give evidence; she objected to give evidence for the prosecution, but was directed to do so and compelled to do so. The question is whether this was lawful or not. -It is clear that this question must be governed by the 4th section of the 5 Criminal EvidenceAct, 1898,which runs asfollows: 'The wife or husband ofa person charged with an offence under any enactment mentioned in the schedule to this Act may be called as a witness either for the prosecution or defence and without the consent of the person charged.' 10 Now, my Lords, if it had not been for that 4th section the wife could not have been allowed to give evidence, and the result of that wasthat thewife could not havebeen compelled to do so and was protected against compulsion. The difference between leave to give evidence and compul- 15 sion to give evidence is recognized in a series of Acts of Parliament. Does then the 4th section, which I have read, deprive the wife of this protection? It is capable of being construed in different ways, and it may hereafter lead, for all I know, to various other difficulties, but the present 20 question is, does it deprive this woman of this protection? My Lords, it says in effect that the wife can be allowed to give evidence, even if her husband objects. It does not say she must give evidence against her own will. It seems to me that we must have a definite change of the law in 25 this respect, definitely stated inan Act ofParliament, before the right of this woman can be affected, and therefore I consider that this appeal ought to be allowed, with what consequences, or how that may be conformable to what is inthetrue interestsofsociety orthepublicinthisparticular 30 case,wearenotconcerned andarenotatlibertytoinquire." In Director of Public Prosecutions v. Blady,[1912] 2 K.B.D. 89, the defendant wascharged before a Court of summaryjurisdiction under s. I of the Vagrancy Act, 1898, with knowingly living wholly or in part on the earnings of prostitution. The 35 person on the earnings of whose prostitution he was alleged to be living was his wife, and the prosecution was commenced by her. Pickford, J., indeciding that thewife wasnot an admissible witness for the prosecution, said at pp. 90-91:" At common law the rule, whatever its origin might be, 40 wasthat awifecouldnot giveevidenceagainsther husband. There were exceptions, but they were confined to cases in 324 5 10 15 50 25 which the offence itself concerned the liberty, health, or person of the wife. If we were to extend the exceptions beyond thoselimitswe should belegislating. Inthe present case theoffence does notnecessarily involve anything ofthe kind. It does not necessarily involve a wife in any way. The offence is living on theearnings of prostitution, it may be of a wife or of anybody else, and therefore it does not concern the person, or the liberty, or the health of a wife. Where theprostitutionhappenstobethat of the defendant's wife, it might be very advisable, if permissible, for the prosecution to call thewife in proof of the offence, If the wife were so called as a witness, it might appear that she had been coerced into prostitution, or it might not. In - cither case the offence would be proved. In other words injury to the person or health of the wife is no part of the offence charged. The fact that a wife has been coerced or ill-treated by her husband does not of itself make her an admissible witness against him where injury to the person, liberty, or health of thewife is no part of the offence with which heis charged. Theexception to therule of common law has never been extended to affect the evidence of a wife whose position is that of a mere witness on a charge against her husband of an offence not involving injury to her person, liberty, or health. Therefore this case does not come within any of the exceptions indicated in any of the cases cited to us, and in my opinion thewife's evidence was not admissible. The magistrate was right and this appeal must be dismissed". Lush, J., in a dissenting judgment said:- 30 35 40 "The foundation of therulewhich prevented awife from giving evidence against her husband was the fact that they were oneperson in theeye of the law. Nodoubt that rule was applied in every case except where it was necessary either for thesafety of thewife or for herwellbeing to relax it. The rule shewed itself in strange ways both in the criminal and in the civil law. Apart from treason, the only cases in which a wife was competent to give evidence in support of a criminal charge against her husband were cases where, if the general rule were not relaxed, thewife would be exposed to the cruelty of her husband. The ordinary case in which the question 325 1977 May 27 NICOSIA POLICE ν THEODOROS PAPASAWA Hadjianastassiou, J. 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA Hadjianastassiou, J. arose was where the husband used, or threatened to use, violence to her. If he threatened it, she could exhibit articles of the peace against him; if he used it, she could give evidence of the offence. The rule was not confined to actual assaults If by legislation a parti- 5 cular act is made an offence which, when all the facts are known, may, like assault or abduction, involve an injury to the person or liberty of the wife, a wrong done to her against her will, then in my view it is wrong to preclude the wife from giving evidence on the charge. Until it is known 10 what the evidence is it is impossible to say whether this particular offence does or does not involve such an injury to the person, liberty, or health of the wife. It may do so, and that is enough, and if it does it is a wrong which can never be proved or may never be proved unless the wife 15 can give evidence. In my opinion the proper course would have been to admit the evidence of the wife in this case, even though, when admitted, it might establish an offence against the State rather than against the wife. The fact that the evidence may not establish an offence against the 20 wife is to my mind no reason for saying that in a case like this the evidence is not admissible. I think, therefore, that this case falls within the principle of the exception to which I have referred, and that the magistrate was wrong in rejecting the evidence." 25 In The King v. Lapworth, [1931] 1 K.B.D. 117, Avory, J. dealing with the question where a husband was indicted for inflicting personal injury on his wife, said at p. 121:" There is no doubt that at common law the husband or wife was always a competent witness in such a case, and by 30 the very nature of things it must havebeen so,for otherwise, where the assault was committed in secret by one spouse upon the other, there would be no means of proving it. Whatever the reason, we are satisfied that at common law the wife was always a competent witness for the prosecution 35 when the charge against her husband was one of having assaulted her." Then, having quoted from the speeches in the-case of Leach v. Rex (supra), he concluded his judgment as follows at pp. 122-123:" W e are satisfied that in the case of Leach v. Rex [1912] A.C. 305, the Law Lords had not present to their minds 326 40 the case, which is now before this Court, where personal violence was alleged to have been done by a wife to her husband or by a husband to his wife, and that they had no intention of including such a case in their observations. 5 In our opinion the learned Judge at the trial was right in holding that Beatrice Annie Lapworth, the wife of the appellant, was bound to give evidence for the Crown." In R. v. Blanchard, [1952] 1 AH E.R. 114, Ormerod, J., presiding over the Leeds Assizes, said at pp. 114-115:- 10 15. 20 •" 25 " I n this case Ernest'William Blanchard is indicted for committing an unnatural offence on his wife. Counsel for the accused submits that the wife isnot a competent witness against her husband on this charge. He submits that it is a well-established general principle at common law that the husband or the wife of a prisoner is not a competent witness against his or her spouse. There have been certain statutory exceptions to that rule which are set out in ARCHBOLD'S CRIMINAL PLEADING, EVIDENCE AND PRACTICE (32nd ed.), at p. 477. None of these exceptions affects this case. There are, in addition, certain other exceptions to the rule, and one well-established exception is that the wife is a competent witness against her husband in cases of personal injury to her. The question I have to decide here is v/hether in this case, where the husband is accused of buggery against his wife, the offence comes within that exception. I am satisfied that it does. It was decided by BIRKETT, J., in R. v. Leary "(unreported), Leeds Assizes, March 1942, that in a case of this kind the wife is a competent witness against her 30 husband, but I think the principle was established long before that. The Object of the"exception is that in cases of this kind—cases where violence is offered, for instance, by a husband to a wife—it must frequently happen that the only person able to give evidence against the husband is 35 · • the wife herself. If she were not a competent witness, clearly the ends of justice would be defeated. That in _. itself, I think, would be sufficient ground for including an offence of this kind within the exception, but it really goes further than that, because cases of personal"injury within 40 ' the-exception have been defined by authorityas cases which •affect the person or the liberty of the spouse who is being 327 1977 May 27 NICOSIA POUCE v. THEODOROS PAPASAVVA Hadjianastassiou, J. 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA Hadjianastassiou, J. called on to give evidence. I find it impossible to hold that a charge of this kind, which is certainly an offence against the person of the spouse, can be regarded as anythingotherthanacaseaffecting theperson,althoughnot necessarily the liberty, of the spouse. In those circumstances I am satisfied that the wife is competent to give evidence on this charge." 5 In Cyprus, the only case we have is Andreas Georghiou alias Naylon v. The Police, 1961 C.L.R. 254. This was the case which the learned Judge relied upon and has quoted both from 10 what he thought was the majority and the minority judgment, and reached this conclusion:" Iam in Lawbound to follow the majority decision and I, hereby, hold that the offence of common assault, ascharged inCount2,isnotcoveredbytheambit ofsection 15 14

(2)of Cap. 9 and, therefore, the proposed prosecution witness, being admittedly the lawful wife of the accused, is in law not competent to testify against her husband, on count 2 either." I think it isnecessaryfor metostatethat thefour Judgeswere 20 equally divided in their approach as to whether a common assault does or does not necessarily come within the exceptions provided in s. 14

(2)of Cap. 9 so as to render the one spousea competent witness against the other. O'Briain, P., delivering thefirstjudgment of the Court with 25 which Vassiliades J. concurred, said at pp. 257-258:" The conviction ofthe appellant isbased mainly upon the evidence of his wife and it seemed to this Court that itwas open to question whether or or not our law permits, in the circumstances of thiscase, the wife to giveevidence against 30 her husband." Then, having referred to s. 14

(1)of the Evidence Law, Cap.9, and having observed that this wasa re-statement of the present law in England which itself drives from the common law, proceeded to consider also subsection 2 of the said law, as well 35 as s. 242of the Criminal Code Cap. 154,and said at p.259:" If this view of the law be correct, it must follow, in my opinion, that to charge a man with common assault, and nothing more, does not, of itself, necessarily allege against 328 5 . 1977 May 27 the accused the infliction of bodily harm or violence. An attempt to inflict bodily harm or violence involves the intention to inflict bodily harm or violence, but, as has been pointed out above, a person committing assault not merelyneednothavetheintentionbut may,indeed, affirma­ tively intend the contrary, namely not to apply any force." NICOSIA POLICE v. ιHEODOROS PAPASAWA Later on he reached this conclusion:- 10 15 20 Hadjianastassiou, J. " Inconclusion Iwould like to say that I have somedoubt as to whether a mere technical battery would satisfy the requirementsof thesectionwhich speaks ofinflicting 'bodily injury or violence' and I desire to reserve this point for consideration if and when it arises in an appropriate case. But in this case it was indubitably open to the Republic to charge theaccused with having inflicted actual bodily harm upon his wife and if that had been doneno question could have arisen about the competency of the wife to give evidence against the accused. The Prosecution chose not to take that course and, as a consequence,thay are, inmy . opinion, faced with the prohibition in section 14, subsection 1of the Evidence Law. I would allow this appeal upon this ground." On the contrary, Zekia,J.,with whom Josephides,J. agreed, in a dissenting judgment said at pp. 260-261 :- 25 30 " I do notthink,however, that thecharge as it stands does not disclose bodily injury, violence or attempt to commit the one or the other. It is true that the common assault as a legal term comprises offences not necessarily involving bodily injury, violence or attempt to commit either but in the ordinary language and in the verbal sense as used in the charge the word 'assault' definitely indicates battery, actually committed, or attempt to commit battery." Then, having referred to s. 39(c) of the Criminal Procedure Law, which lays down that a charge is expected to be framed in the ordinary language and that the words "did unlawfully 35 assault" occurring in the charge preferred against the appellant meant anything else than causing bodily injury or violence to his wife or an attempt to commit either, he concluded as follows:ι 40 " That also indicates to my mind that the word 'assaulted' is normally used -in the ordinary language as meaning 329 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA Hadjianastassiou, J. beating orattemptingtobeat...-(and)For theabovereasons I am oftheopinion that theappeal should be dismissed." Counsel for thePolice in the case inhand, submitted that the trial Judge wrongly decided that thewife of theaccused wasnot a competent witness against her husband because the charge of assault involves a battery as well as an assault; and that once personal violence was inflicted on the wife, her evidence ought to have been received. 5 I have considered very carefully the contentions of both counseland havingregardtotheoffence whichitselfisconcerned 10 with "bodily injury" and directing myself with those judicial pronouncements which lay down that in actual assaults the evidence of the wife against her husband is admissible, I have reached the view, having read the "wording of the charge", viz.that "the accused did unlawfully assault one Themis Papa- 15 savva" (his wife), that the learned trialJudge came to a wrong determination regarding the meaning of the word "assault". Inreachingthisconclusion,Ifindmyselfinfull agreementwith the opinion of Zekia, J. (as he then was), in the case ofNaylon (supra). In the circumstances of this case, I would reiterate 20 that in the ordinary languageand in the verbal sense as used in the charge, the word "assault" definitely indicates battery actually committed or an attempt to commit battery. I would, therefore, set aside the determination of the learned trial Judge and remit the matter to him with the opinion of the 25 Supreme Court thereon under the provisions of subsection

(6)of s. 149 of the Criminal Procedure Law, Cap. 155. A. Loizou, J.: On the application of the Attorney-General under section 149 of the Criminal Procedure Law, Cap. 155, this case has been stated for the opinion of this Court. The 30 question posed, iswhether on a charge of unlawfully assaulting his wife, contrary to section 242 of the Criminal Code, Cap. 154, such wife of the accused, isa competent witness—although not compellable—as coming within the exception provided in section 14

(2)(a)ofthe Evidence Law,Cap.9,ontheground that 35 it involveseither theinfliction or an attempt toinflict anybodily injury or violence upon her. Section 14, which reproduces in effect thecommonlawandthebasicEnglishstatutory provisions on the subject, reads as follows:"14.

(1)Subject to subsection

(2), in criminal proceedings 40 330 against any person, thehusband or wife, asthecase may be, of such person shall not be a competent witness for the prosecution against that person nor a compellable witness against any other person jointly charged with him or her.

(2)The husband or wife of a person charged— (

1. a)with inflicting or attempting to inflict any bodily . injury or.violence upon himor heror upon any of his or her children; (
2. b)with a n offence under any of the sections of the Criminal Code, set o u t in the Schedule t o this Law, or under section 54 of t h e Children Law, shall bea competent witness forthe prosecution against the person so charged a n d a compellable witness against any other person jointly charged with him orh e r " . The trial Judge ruled that unless a case ascharged could be clearly brought within one of the two classes of exceptions, a wife or husband, is riot a competent witness against her orhis spouse a n d ruled'that "the offence of common assault examined per se with reference only to the charge as framed in these proceedings, does not fall within the aforesaid exception with the certainty required in criminal proceedings so as to by-pass the prohibition setoutin section 14

(1)of Chapter 9 " . .In arriving at the aforesaid opinion, he considered himself bound to follow the. interpretation of section 14

(2)of the Evidence Law', C a p .9, of the word "assault", accepted bythe majority decision in t h ecase of Andreas Georghiou alias Naylon v. The Police, 1961C.L.R.

1. . There being n o other evidence to establish a prima facie case against t h e accused he was acquitted a n d discharged under section 74(l)(b) of the Criminal Procedure Law, Cap.
2. It h a s been contended on behalf of t h e Attorney-General that the offence of common assault involves.the infliction or a n attempt t o inflict bodily injury o r violence u p o n a complainant, and, therefore, it falls within -the .exceptions provided in the aforesaid section. The answer t o t h e question posed in this· case, a case of c o m m o n assault, contrary-to section 242 of-the. Code, is that •331 1977 ^i2·""^ N I C O S I A POLICE" v_ THEODOROS PAPASAWA A.-Loizou, J. 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA the wife or husband of the accused, as the case may be, is a competent witness for the prosecution. As the outcome of the determination of the question raised is, in addition to its importance, a departure from judicial precedent, I have felt that I should give my reasons for arriving 5 at this conclusion. A. Loizou, J. In the case of Andreas Georghiou alias Naylon (supra) O' Briain, P. in his judgment with which Vassiliades, J. concurred, took the view that to charge a man with common assault and nothing more, does not, of itself, allege against the accused the 10 infliction of bodily harm or violence, or an attempt to inflict bodily harm or violence, but a person committing assault not merelyneed not havetheintention, but may, indeed, affirmatively intend the contrary, namely, not to apply any force. On the other hand, Zekia, J. in his dessentingjudgment with Josephides 15 J. concurring, took the view that common assault as a legal term comprises offences not necessarily involving bodily injury, violence or attempt to commit either. But in the ordinary language and in the verbal sense as used in the charge, the word "assault" definitely indicates battery or attempt to commit 20 battery, and that the word "assault" is normally used in the ordinary language as meaning beating or attempting to beat. In the case of R. v. Lord Mayor of London [1885-1886] 16 Q.B.D. 772 at p. 775, it was stated that— " the exceptions are confined to those cases in which 25 personal injuries have been effected by violence or coercion by the husband upon the wife or wife upon the husband: see Phillips on Evidence, 10th ed. p.
3. It is upon this ground that it has been held that a husband and wife, as the case may be, can prosecute and give evidence against 30 each other in cases of batteries, assaults, and other personal injury". And it was further stated— " The following passage in the judgment of Mr. Justice Blackburn in the case of Phillips v. Barnett, 1 Q.B.D. 438, 35 is very apposite to the matter in hand. That learned Judge there says: 'There can be no doubt •that if a wife receives bodily injury from the hands of her husband he is liable to criminal proceedings for a felony 332 or'a misdemeanour as the case may be; and in the case of •Ί- any Ordinary assault-it is quite-clear that the wife has a -.' right for the protectionto obtain-articles of thepeace against her husband' ". .." · · .. ::" .- '-·, 5 As also stated in the recent case of R. v. Blanchard [1952] 1 All E.R. p. 114 at p. 115, cases of personal injury within the exception have been defined by authority as cases which affect the person or the liberty of the spouse who is being called on to give evidence. And in the case of D.P.P. v. Bladdy [1912] 10 2 K.B. p. 89 at p. 92, Lush, J. said that "The ordinary case in which the question arose was where the husband used, or threatened to use, violence to her. If he threatened it, she could exhibit articles of the peace against him; if he used it, she could giveevidence of the offence. The rule was notconfined to actual 15 assaults". 20 In my view, the threat to inflict unlawful force upon another which is contained in the offence of common assault, brings this offence within the excaptions set out in section 14

(2)(a) of the Law, and in particular within the alternative of "attempting to inflict any bodily injury or violence upon him or her...." The fact that a common assault is constituted notwithstanding that the threatener did not intend to apply the threatened force, does not, in my mind, change the position, as the actus reus of assault, consists in the expectation of physical conduct which 25 the offender creates in the mind of the person whom hethreatens and the mens rea consists in the realisation by the offender that his demeanour will produce that expectation. (See Russel on Crime, 11th ed. Chapter 37). It is an offence which involves as such, the infliction or an attempt to inflict injury or at least 30 violence on the person and as such, when it is committed as against a spouse, it falls within the exception. For all the above reasons I agree that the determination of the Iearned trial Judge should be set aside and the matter remitted to him with the opinion of the Supreme Court, as above. 35 MALACHTOS, J.: I, also, agree that the decision of the trial Judge to acquit the respondent, by holding that his wife was not a competent witness against him, should be set aside, for the reasons just given by the President of the Court. TRIANTAFYLLIDES, P.: In the result, the Ruling of the trial 333! 1977 May.27 NICOSIA POLICE v. THEODOROS PAPASAWA A. Loizou, J . ' . 1977 May 27 NICOSIA POLICE v. THEODOROS PAPASAWA Judge regarding the competence of the wife of the respondent, who is the accused in thecase before him, isset aside by majority, and the case is remitted to him, with the opimon of the Supreme Court, for determination. Order accordingly. Triantafyilides, P. 334