vitalprosecution witness, before Coroner andtrialCourt—Expert evidence notsafeor satisfactory —Reasonable or lurking doubt, that conviction unsafe or unsatis5 , fqctory^Appeal allowed.t ,Evidence—Expert evidence—Approach to—Court not bound to adopt views
anexpertevenifuncontradicted. Constitutional Law—Humanrights—Rights
person charged with an
fence—Article 12.5
the Constitution. 10 Constitutional Law—Death penalty—Constitutionality
—Articles 7 and 8
the Constitution. 15 , 20 25 The appellant wastried at the Assize Court
Larnaca
the
fence
premeditated murder. The case for the prosecution wasthat onthenight
April 5, 1973, in Larnaca, the appellant, acting in concert with two companions
his, namely Kakis and Neocleous, killed Georghios Fotiou,' by firing repeatedly withfirearms^athim in perpetration
a premeditated plan to murder him. ' ' It wasthe case for the prosecution that the appellant and his accomplices waylaid,the victim at a spot at Thessaloniki avenue and killed him in perpetration
a plan, conceived long before , the appellant found the opportunity to execute the victim; and _that the details
the plan were worked ,out after extensive , . ' shadowingoveraperiod
timedesigned toelicitthemovements ,
the,victim day and, night. On the night
the murder the deceasediwas travelling in a 361 1977 Oct. 31 K.YFJACOS NICOLA KOUPPIS convoy
three cars for safety reasons; and whilst so travelling heaccelerated and overtook the car
the convoy which wasin front
him at theprecisemoment whenthecar
the appellant was seen travelling ahead
them and having done so to follow the appellant into Thessaloniki street. 5 v. THE REPUBLIC The trial Court reached the following conclusions, on the basis
which it convicted the appellant
premeditated murder and sentenced him to death. "1. The accused kept a watch on the movements
the deceased prior to 5th April, 1973. This watch enabled the accused to acquaint himself about the movements
the deceased.
the deceased, mainly in order to ascertain the hour at which he left work. The accused and his companions emerged in front
the convoy
cars, including the car
the deceased, with the sure knowledge that the deceased was on his way home, expecting hira to follow, as it was the deceased's habit, a route via Thessaloniki avenue. The accused, acting in anticipation
the movements
the deceased, turned into Thessaloniki avenue in order to waylay him. The choice
the entrance
Thessaloniki avenue was such as to enable theaccused to cause the deceased to bring hiscar to a standstill without much difficulty, considering that thespeedofthedeceased could reasonably be expected to be low at the time as he was at the entrance
the street. Having entered Thessaloniki avenue,the accused emerged immediately into the middle
the street with a pistol in his hand in order to compel the deceased to stop. The accused approached the deceased and demanded that he should alight. In the meantime his companions alighted, dangerously armed, taking positions round the car
the deceased making his escape impossible. At the same time they immobilized the companion
the deceased, Neofytos Andreou. The accused kept banging on the window pane
the deceased with his pistol and whenthedeceased persisted inhisrefusal toalight,locking his windows at the same time, the accused fired twice at 362 10 15 20 25 30 35 40 the deceased from close range, giving thereby a clear indication
what heintended to dowith thedeceased. 1977 Oct. 31 When the deceased made a vain effort to escape, the companion
theaccused,Kakis,and probably Clavdhios aswell,firedat the deceased riddling his body with bullet wounds. KVRIACOS NICOLA KOUPPIS 7. When the car
the deceased ended on the left side
the road in the circumstances we have described, the accused fired two more shots at the deceased,indicating thereby that he wanted to eliminate every possibility
the deceased surviving the injuries already inflicted upon him. The range from which the accused fired at the deceased and the circumstances under which he did so ,are indicative
his determination to kill the deceased. The wounds caused by the two contact shots referred to in evidence were inflicted upon the deceased by the accused." One
the eye-witnesses, whose evidence wasof vital significance in relation to conclusion No. 7 above, was prosecution witness 7, (Georghiades) who stated before the Assize Court that after the car
the deceased came to a standstill on the left side
the road hesawthe appellantfiringtwo or three shots at the deceased, who was still sitting in the driver's seat
hiscar, almost from point blank range. This same witness when giving evidenceattheinquestalmosttwentymonthsearlier saidnothing about seeing the appellantfiringthe contact shots or any shots at all. What he said with regard to the appellant was that he saw him holding a pistol in his hand. The trial Court stated that thiswitness "told the Assize Court the truth about what he witnessed that night" and that his evidence wasalso supported in material respects bythe evidence
the ballistics* expert (prosecution witness 39, Christofides). The ballistics' expert was shown for the first time the jacket that the deceased waswearing on the night
the murder in the course
the hearing before the Assize Court and was asked whether in his opinion, two
the holes in thejacket had been caused by the contact shots. Thejacket had been in thepossession
the Police for almost four years and the witness himself stated in evidence that if he were to give an expert opinion scientifically the exhibit should have been submitted to him the 363 v. THE REPUBLIC 1977 Oct. 31 KYRIACQS NICOLA KOUPPIS v. THE REPUBLIC earliest possible. He further admitted that in some cases it was necessary to ascertain the existence
gun-powder but where there was a tearing
the cloth and the signs
gun-powder residue were evident a chemical analysis might not benecessary. Asked whether bylooking at thetwo holeson the exhibitjacket 5 he could say that there was residue
gun-powder or evident signsthat they had been caused byshots the witness replied that there was blackening round the holes "which resembles very much with signs
gun-powder" but he could not say with the naked eyewhether there was unburnt gun-powder. 'As regards |Q the nature
the wound caused by a contact shot the witness stated that it is the laceration
the wound which is a characteristic
a contact shot but he admitted that he was never given a detailed description
the wounds which corresponded to the two holes on thejacket which were allegedly caused by contact 15 shots but that he had the opportunity to see once a booklet
photographs which showed the wounds on the dead body but he never had a detailed description such as the diameter
the entry and exit wounds and their details. The trial Court accepted that the ballistics' expert was a witness
truth and a 20 reliable witness. *· - ! Another witness(Andreou)inhistestimonybefore theCoroner and the preliminary inquiry testified that the appellant had firedthe shots after the deceased started
f from his stationary position. In his evidence before the Assize Court, however, he stated that the appellant fired twice at the victim and then after the two shots the latter tried to leave the scene. 25 During the trial and before the ballistics' expert had given evidence counsel for the appellant sought the directions
the Court on the possibility
the costs
expert witnesses, in rela- 30 tion to firearms, who would be consulted and probably called bythedefence beingpaidbytheState. Thetrial Courtheld that the relevant provisions
the Constitution (see Article 12.5) safeguarding fundamental defence rightsdo not confer power to authorise the payment
the expenses that may be incurred for 35 the consultation and calling
expert witnesses out
- public funds; and reached the conclusion that it had no power to give directions in relation to a matter beyond its competence. Upon appeal against conviction counsel for the appellant mainly argued: (a) That the conviction was, having regard to the evidence 364 40 adduced unreasonable or unsafe because in the absence
scientific tests, the Court wrongly relied on the evidence
the ballistics' expert as regards the contact shots. (b) That thejudgment
the Court should be set aside on theground
a wrong decision on a point
Law,viz. that there was sufficient circumstantial evidence against the appellant that he planned the murder and because the finding
premeditation had not been proved beyond reasonable doubt (i.e. that appellant took the decision to kill the victim at Grivas Digenis Avenue at a time prior to the events at Thessaloniki Avenue) (c) That the Court was wrong in turning down the appellant's application for funds to call expert evidence. (d) That the sentence
death was contrary to Article 7.1
the Constitution, which provides that "every person has the right to life and corporal integrity" and that the imposition and execution
such sentence constituted a harsh, inhuman and degrading treatment. In this respect counsel argued that Article 7.2
the Constitution, which authorises a Court
Law to impose the sentence
death in cases
premeditated murder, is unconstitutional because it contravenes Articles 7.1 and 8
the Constitution and both the International Convention on Human Rights and the European Convention on Human Rights. (I) On the question whetherthe murder was committed with premeditation: Held,(Triantafyllides,'P. and A. Loizou,'J. dissenting) "that havingregard to the nature and quality
the evidence it is not possible to say that the trial Court's verdict on the issue
premeditation was either safe or satisfactory. (A) Per -Hadjianastassiou, J., L. Loizou and Malachtos,JJ. •concurring: (a)That astheconclusion
thetrial Court that the appellant kept watch on the movements
the victim prior to April 5, 1973, cannot be sustained, simply because even the companions
the victim.admitted, when meeting the appellant on the road, that it^was a mere,suspicion that he was following them and nothing more; 365 1977 Oct. 31 K.YRIACOS NICOLA KOUPPIS v. THE REPUBUC 1977 Oct. 3 ! KYRIACOS NICOLA KOUPPIS v. T H E REPUBLIC (b) that as it is difficult to know on what evidence the trial Court drew the inference that the appellant kept a watch on the movements
the victim in order to ascertain the hour at which he used to leave work, because the only evidence was that he was seen passing outside the petrol station 10 minutes before closing time, but no evidence was forthcoming that he was seen watching the movements
the persons at the petrol station to realize the exact closing time; 5 (c) that as there are questions which have not been answered regarding the above third conclusion
the trial Court and it 10 is unsafe for any oneto draw the inference that the emerging
the appellant at Thessaloniki Avenue as described by the Court was in those circumstances planned with a view to killing the victim; (d) that as the question whether the victim was carrying a 15 pistol on the fatal night remained unanswered and thefindingof a leather pistol case in his car and the rounds
ammunition in his possession is equally consistent with both carrying and the non-carrying
a pistol and there being grave doubts theygo to the benefit
the appellant; 20 (e) (After dealing with the law
premeditation vide pp420-425post)that asthe evidence
key prosecution witnesses (Andreou and Georghiades) is unsafe and unsatisfactory in view
the discrepancy between what they stated before the Coroner and the Assize Court; 25 (f) that as the evidence
the ballistics' expert regarding his examination
thejacket
the victim, though uncontradicted, isnot safe, not only because
the long passage
time,but also because his observations being the result
an examination with the naked eye, do not give that certainty required in a 30 capital case, in the absence
being also tested in a laboratory (statement
Lord President Cooper in Davie v. Edinburgh Magistrates
experts "is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy
their conclusions, so as to 35 enabletheJudgeorjuryto form theirown independentjudgment by the application
these criteria to the facts proved in evidence" adopted and followed); (g) that as the trial Court, though correctly applying the scientific criteria for testing the accuracy
their conclusions, 40 366 they went-wrong and reached unsafe conclusions and this is the reason why a retrial has not been ordered in this case (cf. judgmentofHadjianastassiou J.inAnastassiadesv.Republic, reported in this Part at p. 97ante); (h) that as there are grave doubts that one could or might reach with certainty the conclusion reached by the trial Court viz. that therangeat which theappellant hadfiredat thevictim and the circumstances under which he did so are indicative
his determination to kill the deceased having regard to the evidence as a whole"on the issue
premeditation; (i) that as the question
premeditation isa question
fact, not
Law, and as great doubts are entertained as to what has actually happened when the victim wasstopped by the appellant on the road, which made him Uill the victim in such a brutal manner, and one may be driven to think in all those circumstances, viz. that because the killer did'not fire at the victim •immediately he stopped him on the road, that it was a killing committed more after the refusal
the victim to alight-after a continuous shouting and banging on thewindow and/or apart from any other conceivable reason, his dashing away to leave the scene, rather than pursuant to a cool preconceived plan (Dicta in Rex v. Cooper[19.69] 1 All E.R. 32 at pp. 33-34, Staffordv. D.P.P. [1973] 3 All E.R. 762 (H.L.) at pp. 764,768, 769, regarding the principle
"lurking doubt" that the conviction may be unsafe or unsatisfactory adopted and followed; see also Kou'tras v. Republic
the trial Court should be set aside on the ground that under the circumstancesofthecaseitisunsafe orunsatisfactory, (havingareasonable doubt or a "lurking doubt"); and that, accordingly, notwithstanding the fact that the trial Judges had every advantage, the appeal will be allowed and both the•conviction and the death sentence will be quashed. (j)That inthecircumstances theappellant should beconvicted
homicide only, under the provisions
section 205
the Criminal Code, Cap."154and sentenced'to life imprisonment. (B) PerL. Loizou-, J. .
the main prosecution witnesses upon which the Court relied infindingpremeditation leaves much to bedesired;"anil-that,·therefore,-thefindingsand inferences based thereon are unsaife.·1 "- :.„..... 367 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC
the deceased who, whilst 5 travelling with his companion in a convoy
three cars for safety reasons, as it was stated, sawfitall
a sudden to accelerate and overtake the car
the convoy which was in front
him at the precise moment when the car
the appellant was seen travelling ahead
them and having done so to follow the 10 appellant into Thessaioniki street.
this nature in a case such asthepresent did notraise,at leasta suspicion inthemind
the Court that the evidence
the witness might not have been as reliable or accurate as they found it to be.
theballistics' expert-vide 20 pp. 395-396 post)that onewould havethought that the witness would have been in a much better position to give an accurate and correct answer to the question whether the wounds on the victim were caused by contact shots had he been given the opportunity tocarryouta scientificexamination inhislaboratory 25 at an early stage rather than having to rely on what he could perceive with a naked eye and from materia! hardly sufficient for the purpose; and that although the witness concluded that in his opinion the holes on thejacket
the deceased had been caused bycontact shotsoneis,in thecircumstances,left wonder- 30 ing about the correctness
his conclusion.
the evidence in this case on the issue
premeditation is a matter
grave concern; that having regard to its nature and quality it is not possible to say that the verdict
the Assize Court on this issue waseither safe or satisfactory; 35 and that the least that can besaid isthat thereisroom for grave doubt whether the killing was premeditated and the appellant is by law entitled to the benefit
such doubt. (C) Per Malachtos,J.
the movements
the victim by the 368 5 10 15 20 25 30 appellant and, in particular, in finding that the car
the appellant emerged in front
thecar
thevictim shortly before the commission
the
fence, because the evidence on this point, according to the prosecution witnesses, is that the victim overtook the car which was preceding and which was driven by his employee P.W. 5, Neofytos Andreou, when obviously he noticed the car
the appellant and followed it when it turned left and entered into Thessaloniki Avenue.
Georghiades,themain point
which isthat after thefirstshotshesawtheappellantnext tothedriver's door
the car
thevictimat itsresultant positionfiringtwoor three times in the direction
the driver's seat, ought not to be accepted by the Assize Court or at least should have created doubts in their minds as to whether this witness was telling the truth on this point, since at the inquest before the Coroner, did not testify anything
the kind, and the explanation given by this witness as to why he did not mention the above fact at the inquest isa very poor one; and that though a witness in giving evidence before a Court
law may not relate facts
minor importance which he witnessed in a given incident surely he cannot beexcused for omitting to state,such facts which constitute the main and the most important part
his evidence.
the Constitution, which authorises a Court toimpose thesentence
death in cases
premeditatedmurder, isunconstitutional because it contravenes Article 7.1
the Constitution: Held, that Article 7.2
the Constitutionisnot unconstitutional. 35 40 (A) Per Hadjianastassiou, J., L. Loizou and Malachtos,JJ. concurring: That onecannot attack the constitutionality
one paragraph
Article7oftheConstitution ascontraveninganother, oncethe framers
theConstitution thoughtfittoincludein theConstitu. tion that a law may provide for such penalty
depriving a 369 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC person
hislife onlyincasesof premeditated murder; and that, accordingly, the contention
counsel will be dismissed. (B) Per Triantafyllides, P. That it cannot beheld that Article 7.2isnot properly in force because it, allegedly, conflicts with Article 7.1 and 8
the 5 Constitution; that what isexpressly provided for inthe Constitution can never be treated, as being inoperative on the ground that its application is excluded by some other provision
the Constitution; that the death sentence which was imposed in the present instance in full conformity with the provisions
7.2
the Constitution on the basis
thefindingsof the trial Court, could not be treated as being vitiated because
any provision to the contrary in any international convention or declaration; and that this Court, when sittingonappeal in acase suchasthepresentone,isexercisingterritorialjurisdictionwithin 15 the Republic
Cyprus and, for this purpose, it hasto apply the Constitution as the supreme law. (C) Per A. Loizou, J. That the wording
.2
the Constitution is so clear and explicit and there is no contradiction in it with paragraph 20
paragraph 2; and that there is no contradiction with the provisions
hich prohibits torture or inhuman or degrading punishment or treatment and which has nothing to do with thedeath sentencepermitted incertain casesto beimposed under 25 paragraph 2
the Constitution. (Ill) On the question whetherthe trial Courtdealt correctly withtheappellant's applicationforfunds,tocallexpert evidence: Held,(Triantafyllides, P.dissenting) A. Per Hadjianastassiou, /., L. Loizou and Malachtos, JJ. 30 concurring: That the trial Court reached a correct view
.5of the Constitution that in the absence
any legislation it could not authorise at that stage payment
funds for legal assistance to the appellant. (B) Per A. Loizou, J. That under sections 166 and 167
the Criminal Procedure Law, Cap. 155and rules 20-23
the Criminal Procedure Rules, funds are under certain conditions whichdo not affect the case 370. 35 5 inhand,availabletodefray thecostsofwitnessesfor thedefence; and that the proper course that should have been followed in thiscasewasnot to inquirewith the Court in suchgeneral terms about the availability
funds, but to take advantage
the procedural steps open to an accused person and make the best
it for his benefit (pp. 488-452post). 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC 10 15 20 25 30 35 Cases referred to: In reKtimatias (reported in this Part at p.296ante); The Republic v. Demetriades and Another
the European Convention on Human Rights, 1961 Vol. 4, pp. 548, 550; Decisions
the European Courtof Human Rights; Neumeister case,delivered on 27.6.1968, para. 22 at p. 43; Delcourt case,delivered on 17.1.1970, para. 28 at p. 15; Decisions
theEuropean Commission
Human Rights: X. v. TheFederalRepublic
Germany (Application No. 1169/61) Yearbook
1963,Vol. 6, p. 520at p.574; X. v. TheFederalRepublicofGermany (Application No.3197/67) Collections
the Decisions
the Commission, Part 26, p. 77 at p. 79; X. v. The United Kingdom (Application No. 5871/72) Decisions and Reports
the Commission, Part 1, p. 54; X. v. Sweden (Application No. 434/58) Yearbook
19581959, Vol. 2 p. 354at p. 370;
nerand Hopfinger v. Austria(Applications Nos. 524/59 and 617/59) Yearbook
1963, Vol. 6 p. 676 at p. 696; Austria v. Italy (Application No. 788/60) Yearbook
1963, Vol. 6 p. 772-at p. 794; X. v. Belgium (Application No. 1134/61) Yearbook,
1961, .Vol. 4 p. 378 at p. 382; Huberv. Austria(Application No. 5523/72) Yearbook
1974, Vol. 17 p. 314 at p. 328; 371 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC X. and TheGerman Association
Ζ v. TheFederal Republic
Germany (Application No. 1167/61) Yearbook
1963 Vol. 6 p. 204 at p. 216; X. v. TheFederalRepublic
Germany (Application No. 852/60) Yearbook
1961 Vol. 4 p. 346 at p. 354; 5 X. and Y. v. The FederalRepublicof Germany(Application No. 1013/61) Yearbook
1962, Vol. 5 p. 158 at p. 164; X. v. Austria (Application No. 1418/62) Yearbook
1963 Vol. 6 p. 222 at p. 250; R. v. Wallwork,42 Cr. App. R. 153 at p. 159; R. v. Merry, 54 Cr.App. R. 274 at p. 279; Pierides v. TheRepublic
Larnaca (Criminal·'Case No." 10213/76) on'one count
the 5
fence
premeditated murder, contrary to sections.203, 204, 20 and 21
the Criminal Code, Cap. 154 (as amended by the Criminal Code.(Amendment) Law, 1962 (Law 3/62)) and was sentenced to death by Pikis, Ag. P.D.C., Papadopoulos, S.D.J. and Constantinides, D.J.. 10 M. Chrislo'phides with G. Georghiout.foTthe appellant. S. Nicolaides, Senior Counsel
the Republic, with R. • Gavrielides, Counsel
the Republic, . for the respondent. ;-, . .: -;-•· * .-,. : .: , •'...." Cur. adv. vult. 15 r The following judgments-.were "read: . TRIANTAFYLLIDES, .P.: .The appellant has appealed against his conviction, on March 3, 1977,byan AssizeCourt in Larnaca,
the
fence
premeditated murder.-under sections 203, 204, 20 and 21
the Criminal Code, Cap. 154, as amended by the 20 Criminal Code'(Amendment). Lawj 1962(Law'3/62)." As.a result
suchconviction hewas sentenced to death;and, though such sentence was the.only one which could have been passed upon the appellant under section 203
Cap. 154,the appellant has, also, appealed in respect"
the death entence 25 on the ground that it is unconstitutional and, also," contrary to the Universal Declaration
Human.Rights
the United Nations,
December 10,1948,and to the European Convention for theProtection
Human Rights and Fundamental Freedoms,
November 4, 1950. 30 It has been the case for the prosecution that on the night
April 5, 1973, in Larnaca, the appellant, acting in concert with two companions
his, namely Kyriacos Kakis and Klavdhios Neocleous, killed Georghios Fotiou, late
Larnaca, by firing repeatedly with.fire-arms at their victim, in perpetration
a 35 premeditated plan to murder him. The trial Court, at the end
an elaborately reasoned judgment, reached the following conclusions, on the basis
which it convicted the appellant :"1. 40 The accused kept a watch on the movements
the deceased prior to 5th April 1973. This watch enabled 373 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS V. THE REPUBLIC 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC Triantafyllides, P. the accused to acquaint himself about the movements
the deceased. 2. On 5th April 1973, the accused kept a watch on the movements
the deceased, mainly in order to ascertain the hour at which he left work. 5 3. The accused and hiscompanions emerged infront
the convoy
cars,including the car
the deceased, with the sure knowledge that the deceased was on his way home, expecting him to follow, as it was the deceased's habit, a route via Thessaloniki avenue.. 10 4. The accused, acting in anticipation
the movements
the deceased, turned into Thessaloniki avenue in order to waylay him. The choice
the entrance
Thessaloniki avenue was such as to enable the accused to cause the deceased to bring his car to a standstill 15 ••• without much difficulty, considering that the speed
the deceased could reasonably be expected to be low at thetime as he wasat the entrance
the street. ' 5. HavingenteredThessaloniki avenue,theaccusedemerged immediately into the middle
the street with a pistol 20 in his hand in order to compel the deceased to stop. 6. The accused approached the deceased and demanded that heshould alight. In the meantime his companions alighted, dangerously armed, taking positions round the car
the deceased making his escape impossible. At 25 the same time they immobilized the companion
the deceased, Neofytos Andreou. Theaccused kept banging on the window pane
the deceased with his pistol and when the deceased persisted in his refusal to alight, locking his windows at the same time, the accused fired 30 twice at the deceased from close range, giving thereby a clear indication
what he intended to dp with the deceased. When the deceased made a vain effort to escape, the companion
theaccused,Kakis,andprobablyClavdhios 35 aswell,firedat thedeceased riddling hisbody withbullet wounds. 7. When the car
the deceased ended on the left side
the.road in the circumstances we have described, the accused fired two more shots at the deceased, indicating 40 374 5 thereby that he wanted to eliminate every possibility
* thedeceased surviving the injuries already inflicted upon him. The range from which the accused fired at the deceased and the circumstances under which he did so are indicative
his determination to kill the deceased. The wounds caused by the two contact shots referred to in evidence were inflicted upon the deceased by the accused." Earlier on in itsjudgment the trial Court stated the following 10 in relation to the evidence adduced:"The evidence relied upon to substantiate the charge may be divided into the following three categories:- 15 1. Evidence tending to establish motive on the'part
the accused and his alleged accomplices, coupled with evidence allegedly establishing a shadowing
the movements
the deceased on the part
the accused for a period
time. 2. Evidence
alleged eye-witnesses. 3. Scientific evidence coming from— 20 (
the ballistics* expert must be judged in juxtaposition to the finding
piecesofrealevidencesuchasexpended cartridge cases, projectiles and broken glass." One
the eye-witnesses in this case, whose evidence is
vital significance in relation to conclusion No. 7,above,
the 30 trial Court, was Kriton Georghiades, who testified that hesaw the appellant standing in the street, outside his house and near the car
the deceased, andfiringthe two shots referred to in the said conclusion No. 7
the trial Court. InrelationtohisevidencethetrialCourtstatedinitsjudgment 35 the following:"In evaluatingtheevidenceof Kriton Georghiadeswehave 375 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC Triantafyllides, P. 1977 _^_ KYRIACOS •NICOLA •KOUPPIS "· THE REPUBLIC Triantafyllides, P. riot overlooked the serious discrepancy between his testimony before the Coroner and the evidence he gave before ^ Assize Court, a''discrepancy
a'kind that should make the Court very careful before deciding to act on his evidence. We have indeed approached his evidence with the utmost 5 care. However, having seen and heard him give evidence -before us we believe he told the Assize Court the truth about what he witnessed that night. His evidence is also supported in material respects by the findings
the police at the scene, as explained by witnesses Christofides and 10 Kyamides. And their evidence does suggest, contrary to what the accused alleged from the dock, that the deceased had been fired at from a very close range whereas the proximity
the expended cartridge cases 9 m.m. calibre does " shed light on the position
the assailant'
the deceased 15 - corresponding-with that given by the'eye-witnesses at the scene."' /. , " . . • . . „ • • • The two prosecution witnesses referred to in the above passage are Acting Police Inspector Andreas Christofides (P.W. 39), a ballistics' expert, and Dr. Andreas kyamides (P.W.'38), a Government pathologist, who carried out a post mortem examination on the body
the victim. 20 In connection with the evidence
Inspector Christofides and Dr. Kyamides, as well as with the evidence
defence witness Dr. Demetrios Fessas (D.W.2), the trial Court said the following 25 in its j u d g m e n t : "Perhaps the most significant part
the evidence
this •witness is his opinion that the shots that caused two
the holes on thejacket
the deceased (exhibit 1A) were caused (a) the hole at the back by.a contact shot, that is a shot 30 fired from a maximum range
two inches from the jacket, and (b) the hole by the right shoulder
the jacket was -again caused by a contact shot fired from a slightly longer range that is from a maximum distance
six inches from , the hole. The witness explained his reasons for coming 35 - to this .conclusion and testified that the insignia and chara : cteristics
these holes make further examination unnecessary, considering that the holes had been caused by what he .· described as-, 'contact' shots. - The- jacket had been examined by the witness for the first time during the hearing 40
the case before the Assize Court and subsequently, while "giving evidence before u s . ' These two holes correspond 376 5 10 15 20 25 30 35 40 with the position
the bullet wounds found by the doctor at the back
the deceased and on the surface
the right shoulder blade
the deceased towards the back pictured in photographs 27 and 26 respectively. Much time was devoted in the cross-examination
Dr. Kyamides as to the precise position
the wound on the shoulder blade. Mr. Kyamides disclaimed any special knowledge
reading photographs and insisted, despite, the appearance one is apt to get by viewing photograph 26, that the wound was where he described, a description that we must say fits with the position
the hole on thejacket
the deceased. In the opinion
the photographer this wound was an inch below the shoulder, a view shared by Dr. Fessas, a witness for the defence, who testified that this injury is on the joint between the upper and middle third
the ulna
the right arm. Mr. Fessas, a general practitioner
long standing, testified, on a consideration
the wounds as they appear on photographs 26 and 27, that the wound in photograph 26 was, to whatever extent he could make out from the photograph, a wound on the right arm and rather surprisingly, we must confess, he went on to express an opinion as to whether this wound as well as that suffered at the back had been caused from a contact shot. Unlike Mr. Kyamides, he did not have the benefit
examining the wounds onthe dead body and it was, ifwe may say without disrespect, rather presumptuous on his part to venture an opinion about the range from which the shots that caused the two wounds in question had been fired. He disclaimed, in his own words, any special knowledge on photography or ballistics. This,however, did not deter him from expressing an opinion. His opinion, to whatever extent it may shed light on the issues under consideration, is that the wound pictured in photograph 26 had not been caused by a contact shot whereas this was more likely the case with reference to the wound pictured in photograph 27. Later in cross-examination he rather inclined to modify his view as to the position
the wound pictured in photograph 26 and indicated its position at a point fitting the corresponding hole on the jacket thus coming round in a way to the view
Dr. Kyamides, who evidently was in a unique position to enlighten us about the position
this bullet wound. It is instructive to note the evidence
377 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS V. THE REPUBLIC Triantafyllides,P.· 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC Triantafyllides, P. Mr. Kyamides as to the angle at which the bullets that caused the wounds pictured in photograph 26 and 27 atthebackoftheshoulderofthedeceased, hitthe deceased. The bullets had struck the deceased virtually vertically. The evidence
Dr. Kyamides on the point, coupled with 5 that
Mr. Christofides as to the range from which these shots had beenfired,if accepted, throws considerable light as to the position
the assailant
the deceased at the time and tends to corroborate in a very direct way the evidence
the twoeye-witnesses that the accused shot at 10 the deceased from close range. Further, this evidence, if accepted, tendstoexclude the possibility that these shots hadbeenfiredbyanyoneofthecompanions
theaccused and gives an indication
the person who fired the pistol that discharged thefour expended cartridge cases that 15 were found at the scene
the incident. On the other hand, theevidence
expert witnesses, partithe testimony
witness Christofides and Dr. Kyamides, have been scrutinized in detail lest their findings are erroneous in any respect or their opinion ill-founded or 20 unjustified.
course thefindingsof experts,whenaccepted as correct, carry the weight
science stripped
human emotion and margins
human fallibility. We were extremely well impressed with witness Christofides, the ballistics' expert. Weformed the view that he 25 is well trained in thefieldof ballistics, with long practical experience behind him. He gave us the impression
being both accurate and succinct both in hisfindingsand intheopinionheexpressed. Hestruck us as awitness who would be unwilling to express an opinion unless certain 30 about it and then ifuncertain to any extent he would
fer his opinion subject to the necessary qualifications. We accept him as a witness
truth and as a reliable witness and feel confident that we can safely act on his evidence. We formed the sameimpression about Dr. Kyamides and 35 acceptwithouthesitation hisfindingsand opinion. Wedid not form the sameview about the evidence
Dr. Fessas, evidence which we consider as totally unreliable." Moreover, it is to be borne in mind that the trial Court rejected "without hesitation" an unsworn statement made by 40 the appellant from the dock during the trial, because it was, 378 inter alia, in conflict with thefindingsof Inspector Christofides and Dr. Kyamides. During the trial, and before Inspector Christofides and Dr. Kyamides had given evidence, counsel for the appellant, who 5 had been assigned by the Assize Court, under section 64
the Criminal Procedure Law, Cap. 155,to defend the appellant at the trial, raised, on February 17, 1977, the question
how thecosts
.expert witnesses in relation tofire-arms,whowould be consulted and probably called by the defence, would be 10 paid;therelevantpartoftherecordofthetrialreadsasfollows:- 25 "Time: 5:30 p.m. Christofides: Your Honours,thetimeisabout 5:30p.m. and I understand that the Court willbreak for to-morrow. Before theCourt risesthereisonething Imustbring to the noticeoftheCourtandaskdirections. Inaccordancewith theprovisionsofArticle 12.5oftheConstitution theaccused must be afforded, interalia,sufficient 'diefkolinsis', that is facilities for the preparation
his defence. In this case expert evidenceonfirearmswillbeledbythepoliceand the defence will consult and probably adduce expert evidence on the question
fire-arms. The question arises
who shall pay the costs
these experts. .It is well known that we were assigned by the Court to defend the accused and surely the directions
the Court on the matter would be most helpful. 30 Nicolaides:- There is no obstacle on the part
the • prosecution for any facilities to be afforded to the defence. But unless there is the machinery wecannot improvise the machinery for suchfacilities. No law has been introduced implementing that paragraph
the Constitution, 15 20 35 40 DECISION: Learned counsel for the defence raised an interestingand novel point. Hesought thedirections
the Courtonthepossibility
thecostsofexpertwitnessesbeing paid bytheState inthe event where this Court considered thiscoursenecessary for theproper preparationandpresentationof thecasefor thedefencebeforetheCourt.Mr.Christofides made it clear that there is no provision anywhere in the criminal procedure or regulations made thereunder entitling the Court to authorize the payment
such expenses. He did point out, however, that in Article 12.5 itislaiddownthat theaccused shouldbeafforded, adequate 379 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBUC Triantafyllides, P. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. facilities for the preparation
his defence and submitted that the amenity to consult and call expert witnesses is suchanessentialfacility that thisfacility shouldbeprovided by the State where the accused has no.funds, especially in a case where defence counsel appear on a Court assign- 5 ment. THE REPUBLIC Triantafyllides, P. Learned counsel for the prosecution, in his reply, indicated that there is willingness on the part
the State toafford everyfacility for which thereiswarrant in thelaw to the accused for the preparation
his defence but 10 submitted thatthereisnowhereprovisionthat might entitle the Court to give such directions. In"ourjudgment, therelevant provisions
the Constitution safeguarding fundamental defence rights donot confer power to authorize the payment
the expense that may 15 be incurred for the consultation and calling
expert witnesses, out
public funds. This Constitutional provision is designed to ensure substantial equality between the prosecution and the defence with regard to the right to choose their witnesses and produce them before the Court 20 without hindrance. Had the Constitutional legislators intended to confer such a right on the accused they would include this right amongthe minimum fundamental rights, such as the right to have an interpreter.
course had the State implemented those provisions
the Constitu- 25 tion, making mandatory the setting up
a system
legal aid, surely a law might provide as an aspect
legal aid the payment
the expenses
defence witnesses and the circumstances under which such expenses might be paid. We do not overlook that a citizen may conceivably find 30 himself at a disadvantage onaccountofinequality
means but in the absence
an organiclawwehavenopower to substitute for the House
Representatives and legislate in effect for someaspects
legal aid.
course theState must, at the first available opportunity, provide, as it has 35 been repeatedly stressed by the Supreme Court, for a comprehensive system
legal aid though, having in mind the multiple problems the State has had to face so far one cannot betoo critical
failure toprovide acomprehensive scheme
legal aid. Therefore we have no power to 40 give directions in relation to a matter beyond our competence.
course, if at the end
the proceedings the 380 5 defence applies to the appropriateGovernmental-Depart ment for the payment
these costs,—and we must say that there is at present nothing in the law providing for such a procedure—and if the views
the Court are asked on the matter, we shall give our views.depending on the necessity
incurring the expenditure and its reasonable ness. The case-is adjourned-for further hearing to-morrow at 9:30 a.m. Accused to remain in custody.** 10 As a result
.the above-quoted decision
the trial Court nonexpert witness in relation to fire-arms was consulted, or called, by the defence at the trial. A medical expert witness, Dr. Fessas, was.'however, called by.the defence and his costs were, eventually, paid, after the trial, out
public funds. 15 As it appears,,howeyer, from thecommentsof thetrialCourt on the evidence
Dr. Fessas, which we have already quoted, his evidence waslnot treatedras,expert evidence in-relation;to ballistics matters and, therefore, the gap in the case
the defence, due to the absence
such expert evidence, was not 20 remedied by thefact that Dr. Fessas gave evidence at the trial as a defence witness/ "•:;' :' Counsel for the appellant have complained that, because
the aforesaid decision"
the trial Court on February 17, 1977, theappellantwas prejudiced inthe preparationandpresentation 25
his.defence at thetrial, in a.manner contrary;-to,the relevant provisions
our..Constitution..; · -., ,·._•-.— -.,•.. Paragraphs 2 and 3
the Constitution provide . *. as follows:;-·· '.:--'.., ' \': • ' κ· -.• '.·„. • •'.;;.v : ' · :·[> 30 35 40 "2. In the determination
his civil rights and obligations or
any criminal charge against him, every person is entitled to a fair and.public hearing within a reasonable time by an independent, impartial and competent Court established by law. Judgment shall lie reasoned and pronounced in public session, but the press and the public -maybe excluded from all or any.part
the trial upon a decision
the-Court where it is in the interest
the - security
the Republic or the constitutional order orthe public order or the public safety or the public morals or where the interests.
juveniles or the protection
the private life
the'parties so require or, ih special circum381 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS V. THE REPUBLIC Triantafyllides,P. 1977 1 Oct. 31 KYRIACOS NICOLA KOUPPIS V THE REPUBLIC Triantafyllides, Ρ stances where, in the opinion
the Court,publicity would >- prejudice the interests
justice. - !· ' 3. Every person has the right— - , (a) to be informed
the reasons why he is required to appear before the Court; f 5 (
his own choice.and to have free 10 legal assistance where the interests
justice so require • and as provided by law; , (e) to have free assistance
an interpreter if he cannot understand or speak the language used inCourt." The above provisions relate·to proceedings before the Courts 15 generally. •In relation, however, to a trial for an
fence paragraph 5
the Constitution provides, particularly, as follows:"5. Every person charged with an
fence has thefollowing minimum rights:- 20 (a) to be informed promptly and in a language which he understands and in detail
the nature and grounds
the charge preferred against him; (b) tohave adequatetimeandfacilities for the preparation 25
his defence; (c) to defend himself in person or through a lawyer
his own choosing or, if he has no sufficient means to payfor legal assistance, to be given free legal assistance when the interests
justice so require; 30 (d) to examine or have examined witnesses against him and to obtain the attendance and examination
witnesses on his behalf under the same conditions as witnesses against him; (e) to have thefree assistance
an interpreterif hecannot 35 understand or speak thelanguage used in Court." '' 382 5 All the above,provisions
the Constitution are formulated in such a manner so as to ensure for, inter alia, any person charged with a criminal
fence a "fair'Mnal; and as I have had occasion to observe in Re Ktimatias, (reported in this Part at p. 296 ante, at pp. 306-307) a trial may still not conform to the general standard
"fair" trial,' in the sense
'30.2, even if the specific minimum rights
an accused person have been respected, because the enumeration
such"minimum rights is not exhaustive. 10 It is to be noted, furthermore, in this connection, that in The Republic v. Nicos Demetriades and another,
our Constitution safeguards " t h e fundamental right
an accused person to have a fair trial in every' respect!", 15 Article 30.2
our Constitution corresponds, very closely, to Article 6
the aforementioned European Convention on Human Rights, which reads as follows :" 1 . In'the determination
his civil rights and obliga tions or
any criminal charge against him/everyone is entitled to a fair 'and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the * press arid'public may be excluded from all or part
the trial in the interests
morals,' public order or national ' "security in a' democratic society, where the interests
juveniles or the protection
the private life
the parties so require, 1or to the extent strictly necessary in trie opinion.
'the Court in special circumstances where publicity would ,prejudice the interests
justice." «, , •t 20 25 30 Likewise, Article^ 12.5
our Constitution corresponds, equally closely, to Article 6
the said Convention, whicti reads as follows:;. .. " 3 . , Everyone charged with a criminal
fence has the fallowing minimum rights: 35 f,. (a) to be informed promptly, in a language which he r ' understands and in detail,
the nature and cause
the accusation against him'; - • (b) to have adequate time and facilities for the preparation •
his defence; - * ... i« .IT 383 1977 Oct 31 KYRIACOS NICOLA KOUPPIS ν THE REPUBLHJ Tnantafyludes, ft 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBUC Triantafyllides, P. (c) to defend himself inperson or through legal assistance
his own choosing or, if he hasnot sufficient means topay for legalassistance,tobegiven it free when the interests
justice so require; (d) to examine or have examined witnesses against him 5 and to obtain the attendance and examination
witnesses on his behalf under the same conditions as witnesses against him; (e) tohavethefreeassistance
an interpreterif hecannot understand or speak the language used in Court." 10 It is well settled that the European Convention on Human Rights, which has been ratified by the European Convention on Human Rights (Ratification) Law, 1962 (Law 39/62), is applicable in the Republic
Cyprus, byvirtue
.3
our Constitution and, therefore, it is
"superior force to 15 any municipal law" (see, in this respect, inter alia,Christou v. Christou,1964 C.L.R. 336, 346, Kama v. The Police,
theaforesaid provisions
theEuropean Convention on Human Rights (by the European Commission
Human Rights and the European Court
Human Rights) can provide most useful guidance as regardsthe interpretation 25 and application
the corresponding provisions
our own Constitution which have,already, beenquoted in thisjudgment. In Nielsen v. Denmark (Application No.343/57)theCommission stated, interalia,the following (see the Yearbook
the European Convention on Human Rights, 1961, vol. 4, pp. 30 548, 550):"Article 6
the Convention does not define the notion
'fair trial' in a criminal case. Paragiaph 3
the Article enumerates certain specific rightswhichconstitute essential elements
that general notion, and paragraph 2 may be 35 considered to add another element. Thewords 'minimum rights', however clearly indicate that the six rights specifically enumerated in paragraph 3 are not exhaustive, and that a trial may not conform to the general standard
a 'fair trial', even ifthe minimum rights guaranteed by para- 40 384 • graph 3—and also the right set forth in paragraph 2—have been respected. The relationship between the general ι provision
paragraph 1 and the specific piovisions
paragraph 3, seemJ o be as follows: 5 In a case where no violation
paragraph 3 is found to have taken place, the question whether the trial conforms to the standard laid down by paragraph 1must be decided on the basis
a consideration
.the trial as a whole,,and not on the basis
an isolated consideration
one parti! cular aspect
the trial or one particular incident. Admit tedly, one particular incident or one particulai aspect even if not falling within the provisions
paragraphs 2 or 3, may have been so prominent or may have been
such importanceas to be decisive for the general evaluation
the trial as a whole. Nevertheless, even in this contingency, it is on the basis
an evaluation
the trial in its entiiety that the answer must be given to the question whether or not there has been a fair trial." 10 15 It is well settled that the principle
equality
arms is an inherent element
a fair trial within the meaning
the Convention (see, in this respect, Fawcett on The Application
the European Convention
Human Rights, 1969, p. .137 et seq., Castberg on The-European Convention
Human Rights, 1974, p. 123 et seq. and Jacobs on The 25 European Convention on Human Rights, 1975, p. 99 et seq., thejudgments
the Court in the case
Neumeister, delivered on June 27, 1968, para. 22 at p. 43, and in the case
Delcourt, delivered on January 17, 1970, para. 28 at p. 15, and the deci sions
the Commission in .the cases
X v. The Federal 30 Republic
Germany, application No. 1169/61, Yearbook, 1963,vol. 6,pp. 520, 574,Xv. TheFederalRepublic
Germany, application No? 3139/67, Collection
the Decisions
the Commission, Part 26, pp. 77, 79 and X v. The United Kingdom, application No. 5871/72, Decisions and Reports
the Commis35 sion, Part 1, p. 54). 20 1 Concerning the principle
equality
arms the following are stated by Fawcett, supra (at p. 137):- 40 "The principle
the equality
arms (Pegalite des armes; Waffengleichheit) is an expression·
the'rule audi alteram partem, and implies that each party to-'the proceedings •' before a tribunal-must be given a full opportunity to present 385. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. T H E REPUBLIC Triantafyllides, P. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS his case, both on facts and in law, and to comment on the case presented by his opponent. This opportunity must be equal between the parties and limited only by the duty
the tribunal to prevent in any form an undue prolongation or delay
the proceedings." 5 v. THE REPUBLIC Triantaryllides,P. In this respect the Commission stated the following in its decision in the case
X v. Sweden application No. 434/58 (Yearbook, 1958-1959, vol. 2, pp. 354, 370, 372):"Whereas, also, the right to a fair hearing guaranteed by Article 6, paragraph 1,
the Convention appears to 10 contemplate that everyone who is a party to civil proceedings shall have a reasonable opportunity
presenting his case to the Court under conditions which do not place him under a substantial disadvantage vis-a-vis his opponent;" The same principle
equality
arms applies a fortiori to criminal proceedings; in its decision in the cases
ner and Hopfinger v. Austria, applications Nos. 524/59 and 617/59, Yearbook, 1963, vol. 6 p. 676, 696, the Commission stated the following:"In the present cases the problem is whether the notion
a 'fair trial' embodies any right relating to the defence beyond and above the minimum rights laid down in paragraph
the opinion that what is generally called 'the equality
arms', that is the proce- 25 dural equality
the accused with the public prosecutor, is an inherent element
a 'fair trial'. Whether such equality has its legal basis in paragraph
subparagraphs (b) ('to have adequate time and facilities for the preparation
his defence') and (c) 30 ('to defend himself in person or through legal assistance'). The Commission need not express a definite opinion on this point, since it is beyond doubt that in any case the wider and general provision for a fair trial, contained in paragraph
, embodies the notion
'equality 35
arms'." In the case
Austria v. Italy, application No. 788/60, the Commission observed that Articles 6
the Convention, convey to some extent, in their special field, an idea
equality very similar to the principle
non-discrimination laid 40 386 15 20 10 down in Article 14
the Convention (see Yearbook, 1963, vol. 6, p. 794). 1977 Oct. 31 An aspect
the principle
equality
arms which is
particular significance is that which relates to the time and facilities for thepreparation
thedefence
an accused person and, especially, to his right to examine witnesses against him and to obtain the attendance and examination
witnesses on his behalf under thesame conditionsas witnesses against him. KYRIACOS In this connection,the Commission,in its decision in the case
X v. Belgium, application No. 1134/61 (Yearbook, 1961, volume 4, pp. 378, 382) stated:- 15 20 f 25 ' "Whereas in paiticular, with regard to.the alleged violation
paragraph
, this paragraph provides that every person charged with a criminal
fence has the right 'to examine or have examined witnesses against him and to obtain the attendanceand examination
witnesses on his behalf under the same conditionsas witnesses against him'; whereas the Commission has already pointed out, in pronouncing on the admissibility
Applications No. 617/59 (Hopfinger v. Austria) and No. 788/60 (Austria v. Italy), that the text in question is intended to place the indicted, prosecuted or accused person on an equal footing with the prosecution as regards the hearing
witnesses, but not to give him a right to call witnesses without restric tion;" , Likewise, in the case
Austria v. Italy, supra (Yearbook, 1963, vol. 6, p. 772), the Commission stated the following in its decision:- 30 35 40 r . "Article 6
the Convention, in guaranteeing- to everyone charged with a criminal
fence the right to obtain1 the attendance and examination
witnesses on his behalf under the same conditions as witnesses against him, aims at ensuring for the defence complete equality
treatment ' in this respect with the prosecution and 'the civil plaintiff. On the other hand, it does not imply the right to have witnesses called without restriction. Thus, this provision does not mean that municipal law cannot lay down condi- ' tions for the admission and examination
witnesses, provided that such'conditions are identical for witnesses .- on bothsides. Similarly, thecompetentjudicial authorities ι- Jn:Contracting States are free, subject to respect for the 387 NICOLA KOUPPIS v. T H E REPUBLIC Triantafyllides, P. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS terms
the Convention and in particular the principle
equality established by Article 6
a witness for the defence is likely to assist in ascertaining the truth, and if not, to refuse to call that witness." 5 v. T H E REPUBLIC Triantafyllides,Ρ The same view,as above, is reiterated in more recent decisions
the Commission, such as that in the case
Huber v. Austria, application No. 5523/72 (Yearbook, 1974, vol. 17, pp. 314; 328). For the purposes
the relevant provisions
the Convention 10 the term "witness" includes, also, an "expert witness" (see, inter alia, Fawcett, supra, at p. 174, and the decision
the Commission in application No. 1167/61, X and the German Association
Ζ v. TheFederalRepublicof Germany, Yearbook, 1963, vol. 6, pp. 204, 216). 15 It has been held by the Commission that it is conceivable that, in certain circumstances, the refusal
a Court to allow a witness to testify may contravene directly the requirement
fair trial in Article 6
the Convention, and not only the specific provision in Article 6
the Convention (see, 20 in this respect, the decision
the Commission in X v. The FederalRepublicof Germany, application No. 852/60, Yearbook, 1961, vol. 4, pp. 346, 354, and our own case
Christou, supra, at p. 346, in which the above decision
the Commission has been referred to). 25 The establishment
a violation
the provisions
Aiticle 6
the Convention regarding a "fair hearing" cannotbe deter mined in abstracto, but it is a matter which must be considered in the light
the special circumstances
each case (see the decision
the Commission in thecase
X and Υ v. TheFederal 30 Republic
Germany, application No. 1013/61, Yearbook, 1962, vol. 5, pp. 158, 164); and, for this purpose, the trial
an accused person must be considered as a whole (see the decision
the Commission in Xv. Austria, in application No. 1418/62, Yearbook, 1963, vol. 6, pp. 222, 250). 35 Also, in itsjudgment intheDelcourtcase, supra,theEuropean Court
Human Rights has observed the following regarding the interpretation
25, p. 15):"In a democraticsociety within the meaning
the Conven tion, the right to a fair administration
justice holds such 40 388 a prominent place that a restrictive interpretation
that provision". I am
the opinion that the principle
equality
arms, 5 as expounded above, is an inherentpart
all the provisions
.2 and Article 12.5
our own Constitution which correspond, respectively, to paragraphs
the European Convention on Human Rights. Moreover this principle is directly safeguarded—in a manner 10 not to be found in the Convention—by means
.1
our Constitution,which provides that "All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatmentthereby"; it is to be noted, in this respect, that Article 28.2
our Constitution 15 corresponds to Article 14
the Convention but, in the latter Article, theredoes notexist any provision such as paragraph 1(
our Article 28. Looking, now, as a whole at the trial
the appellant in the present appeal, and taking duly into account all relevant 20 considerations, I feel bound to cometo the conclusion that the deprivation
the appellant
the possibility
consulting a ballistics' expert and
calling him as a witness for the defence operated in such a manneras to place him at a grave disadvant age vis-a-vis the prosecution, at his trial, in a manner which 25 contravened the principle
equality
arms, as safeguarded both by our Constitution and by the said Convention. In this respect I think that it must be stressed that the evidence
the ballistics' expert called by the prosecution, Inspector Christofides (P.W.39), turned out to be
decisive importance 30 regarding the findings made by the trial Court about the part played by theappellantinbringing aboutthedeathof thevictim and, also, regarding theexistence, on his part,
premeditation to cause such death. As already pointed out in this judgment, the appellant was 35 being defended by counsel assigned to him by the trial Court, under section 64
Cap. 155 (as well as under-Article 12.5(c)
theConstitution);andithasbeencommon ground,all along, that the appellant had no means
his own enabling him to either engage counsel to defend him or to pay for the expenses 40
defence witnesses. I have, consequently, reached the conclusion that the only 389 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS V. THE REPUBLIC Triantafyllides, Ρ 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS V. T H E REPUBLIC Triantafvllides, P. proper course open to me is to treat the conviction
the appellant as having been the culmination
a process which evolved in a manner inconsistent with essential constitutional safeguards
an accused person, such as those set out in Articles 12.5, 30.2 and 28
the Constitution; therefore, his conviction has 5 to be set aside on this ground. It is obvious from the decision given by the trial Judges on February 17, 1977, during the trial and when the issue
the need by the defence
the services
ballistics' expert was raised, that they appreciated fully that Article 12.5
the 10 Constitution is designed to ensure substantial equality between the prosecution and the defence, but they, eventually, reached the conclusion—though they clearly expressed their anxious concern about the matter in question and have, undoubtedly, acted with the utmost good faith—that, in the absence
any 15 statutory provision enabling them to order the payment
the ' ' expenses
such an expert, they had no competence to give directions in this connection. Even if that were so, I would, still, have been inclined to hold that, in the particular circumstances
this case, the 20 conviction
the appellant has to be set aside as having been brought about by a process inconsistent with the Constitution, because it is not his fault that the State has not made provision to meet a situation such as the one which has arisen in the present instance. I am, however,
the opinion that, even in the absence
a specific statutory provision directly authorizing the trial Court to order that the expenses
a ballistics' expert to be called as a witness by the defence should be paid out
public funds, there existed ways by means
which there could have effectively 30 been ensured the availability
such an expert; for example, once counsel appearing for the prosecution hadstatedthat"there is no obstacle, on the part
the prosecution, for any facilities to beafforded to the defence" hecould have been asked to make available to thedefence a ballistics'expert out
those employed 35 by the police in various parts
Cyprus or to take steps to make available at public expense such an expert even if he was not in Governmental employment but he was,for example, a retired ballistics' expert
the police. The trial Court could, also, have used its power
calling 40 itself a witness in a criminal trial under section 54
Cap. 155 390 25 (and regarding the extent and the exercise
such power, see, also, Phipson on Evidence, 12th ed., p. 676, para. 1619, and R. v. Wallwork, 42 Cr. App. R. 153, 159). In this way a second ballistics' expert, in addition to Inspector Christofides (P.W. 39), 5 could have been heard and, thus, both the prosecution and the defence," as well as the trial Court, could have had the opportu nity
testing, against the independent evidence
another expert, the correctness
the findings
Inspector Christofides, with the consequence that the disadvantage suffered by the 10 appellant, as an accused person, by not being able to secure the attendance, as his own witness,
a ballistics' expert, would have been minimized to such an extent that it could have been conceivably held, eventually, that there was no substantial contravention
the relevant constitutional provisions safeguar15 ding the principle
equality
arms. Even anotherway in which a ballistics' expert could have been made available to the defence at public expense would have been for the trial Court to adjourn the further hearing
the case, on February 17, 1977, for a few days, so as to have an 20 opportunity
exploring administratively, through the Supreme Court, the possibility
the Minister
Justice ensuring that the State would pay the expenses
a ballistics' expert to be consulted and called as a witness by the defence.
course, it has to be stressed thattherequirements
thedefence, as regards 25 the services
a ballistics' expert, would have had to be met in a reasonable manner and without any extravagance beyond the limit
what was properly necessary in the circumstances. 30 Having decided, as already stated in this judgment, that the conviction
the appellant should be set aside, the next issue which I have to consider is whether he should be discharged or whether there should be an order, under section 145(l)(d)
Cap. 155,'for his retrial. : • • I have weighed carefully the advisability
ordering a new trial in a serious case, such as the present one, in which the 35 appellant has been facing a charge
murder; Iam not prepared to hold that murder cases should, invariably, be treated as being outside .the ambit
the exercise
the-.powers under section 145(l)(d)
Cap. 155; and, as a.matter
fact, in R. v. Merry, 54 Cr. App. R. 274, the Court^
Appeal (Criminal Division) 40 in England ordered anew trial in a case
murder,in the exercise {,>
powers analogous to those
.our .Supreme..Court .under 391 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC Triantafyllides, Ρ 1977 ' Oct. 31 KYRIACOS NICOLA KOUPPIS V. T H E REPUBLIC Triantafyllides, P. s ection 145(l)(d), above;in that case Edmund Davies L.J. stated the following (at p. 279):"We have been reminded
the decision
the Court
Criminal Appeal in JORDAN [1956] 40 Cr. App. R. 153, where a conviction
murder was quashed after the Court 5 had heard fresh medical evidence. But it is to be observed that JORDAN (supra) was decided many years before this Court was for the first time vested with the power to order a new trial. We consider that in the interests
justice, this appellant should be retried. The Crown may then call 10 such evidence as it desires to in relation to this fresh matter, or any other matter, just as the defence are equally entitled to present any material which they desire." In the light
all relevant considerations, and having in mind what has been stated in, interalia,Pieridesv. The Republic 15
justice, for a new trial after the setting aside
a conviction on appeal, I have reached the conclusion that this is, indeed, a proper case in which an order for a new trial should be made. 20 It is worth noting that the Australian case
Peacock v. The King, 13 C.L.R. 619, which has been refered to in the judgment in the Pierides, case, supra, is an instance in which a new trial was ordered, on appeal, in a capital case, namely in a case
murder, 25 Having reached the conclusion that the appellant should be retried on the charge
premeditated murder it would not be right for me to pronounce finally on any other issue arising in this case. In relation, however, to the aspect
premeditation I feel 30 that I have to observe that I am inclined to the view that when a group
heavily armed persons, such as the appellant and his two companions in the present instance, are roaming the streets
a town, in anticipation
a possible encounter with political opponents
theirs, and if in the course
such an encounter 35 they use their arms with the result that there is caused deprivation
life, then, as a matter
general principle,there do exist elements in the light
which, depending on the special circumstances
each individual case, the conclusion might be reached that there existed premeditation to commit murder; one might 40 392 describe such premeditation as "conditional premeditation" (see, in this respect, inter alia, R. v. Chakoli, 8 C.L.R. 93, Pieris v. The Republic,
counsel for the appellant that the death sentence was invalidly passed upon the appellant in the present case.
course, since his conviction, has, in my opinion, to be set aside and a retrial should take place, the death sentence passed upon him would no longer be executed, but I wish, nevertheless, to state that I cannot accept the contention
counsel for the appellant that it is possible to pronounce that the death sentence was invalidly imposed in a case which comes within the ambit
.2
the Constitution. It cannot be held that the said Article 7.2 is not properly in 15 force because it, allegedly, conflicts with Articles 7.1 and 8
the Constitution; what is expressly provided for in the Constitution can never be treated as being inoperative on the ground that its application is excluded by some other provision
the Constitution. 20 Nor could the death sentence, which was imposed in the present instance in full conformity with the provisions
.2
the Constitution on the basis
the findings
the trial Court, be treated as being vitiated because
any provision to the contrary in any international Convention or Declaration; 25 this Court, when sitting on appeal in a case such as the present one, is exercising territorial jurisdiction within the Republic
Cyprus and, for this purpose, it has to apply theConstitution as the supreme law. I would like, none'the less, to reiterate that I still adhere to 30 what I have said about the execution, as contradistinguished from the imposition,
a 'death'sentence, in Vouniotis v. The Republic,
fer,,to the decisionof the Privy Council in England in De Freitas v. Benny, [1975] 3 W.L.R. 388. . For all the foregoing reasons, this appeal should, in my opinion, be allowed and a new trial
the appellant, on the charge
premeditated'murder,'should take place. 393 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC Triantafyllides, Ρ ·977 J_ KYRIACOS KOUPPIS v. THC REPUBLIC L. Loizou, J.: I have had the opportunity
reading the judgment
Hadjianastassiou, J. and I agree with the conclusion reached by him and the reasons therefor. * a m clearly
the view that the evidence
the main prosecution witnesses upon which the Court relied in finding premedita- 5 tion leaves much to be desired and that, therefore, the findings and inferences based thereon are unsafe. I agree in particular that the evidence did not warrant the conclusion that the appellant was shadowing the victim or that he and his companions waylaid him at the scene
the crime in Thessaloniki street. 10 The latter finding especially is, to my mind, quite inconsistent with thc behaviour
the deceased, who, whilst travelling with his companions in a convoy
three cars for safety reasons, as it was stated, sawfitall
a sudden to accelerate and overtake the car
the convoy which was in front
him at the precise 15 moment when the car
the appellant was seen travelling ahead
them and having done so to follow the appellant into Thessaloniki street. One
the most vital prosecution witnesses on this issue was prosecution witness 7, Criton Georghiades, who witnessed the 20 incident through the shutters
the window
his first-storey house which almost overlooks the scene
the crime. This witness in the course
his evidence before the Assize Court, inter alia, stated that after the car
the deceased came to a standstill on the left side
the road he saw the appellant 25 firing two or three shots at the deceased who was still sitting in the driver's seat
his car almost from point blank range. This fact the Court concluded wasindicative
appellant's determination to kill the deceased. This conclusion
the Court would not be open to any complaint or criticism but for the fact that 30 this same witness when giving evidence at the inquest almost twenty months earlier said nothing about seeing the appellant firing the contact shots or any shots at all. All he said with regard to the appellant was that he saw him holding a pistol in his hand. He explained this discrepancy by saying that the 35 way a statement is elicited before the Coroner is different from the way one's evidence is elicited before the Assize Court and that while giving his testimony before the Coroner at the inquest he gave emphasis to the fact that he identified the person he saw firing and he thought that other questions would follow; and 40 when he finished his testimony before the Coroner, he said, he was left with the impression that he had omitted something. As stated above the witness never stated at the inquest that he saw 394 the appellant firing at all and I find it difficult to comprehend how a discrepancy
this nature in a case such as the present did not raise,at least,a suspicion in the mind
the Court that the evidence
the witness might not have been as reliable or 5 accurate as they found it to be. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. Apart from the evidence
this eye-witness (P.W.7, Georghiades) the prosecution endeavoured to establish the contact shots by the evidence
the ballistics' expert P.W.39, Inspector Christofides. But the way they went about it was, 10 in my view, hardly fair either to the witness himself or to the case. The witness was shown for the first time thejacket that the deceased.was wearing on the night
the 5th April, 1973 whenhewaskilled,inthecourseofthehearingofthecasebefore the Assize Court and wasasked whether in his opinion, two
15 the holes in thejacket had been caused by contact shots. This jacket had been in the possession
the police for almost four years and the witness himself stated in evidence that if he were to give an expert opinion scientifically the exhibitshould have been submitted to him the earliest possible. He further 20 admitted that in some cases it was necessary to ascertain the existence
gun-powder but where there was a tearing
the cloth and the-signs
gun-powder residue were evident a chemical analysis might not be necessary. Asked whether by looking at the twoholes on theexhibitjacket he could say that 25 there wasresidue
gun-powder or evident signs that they had beencaused by shotsthewitness replied that there wasblackening round the holes "which resembles very much with signsof gun-powder" but he could not say with the naked eye whether there was unburnt gun-powder. As regards the nature
the 30 wound caused by a contact shot the witness stated that it is thelaceration
thewoundwhichisacharacteristicofacontact shot but headmitted that hewasnever given a detailed description
the woundswhich corresponded to the twoholes on the jacket which were allegedly caused bycontact shotsbut that he 35 had theopportunity to seeonceabooklet
photographs which showedthewoundsonthedeadbodybutheneverhadadetailed description such as the diameter
the entry and exit wounds and their details. One would have thought that the witness would have been ina much better position to give an accurate 40 and correct.answer to.the question had hebeengiven theopportunity to carry out a scientific examination inhis laboratory at an'early stage rather than having to rely on what he could perceive with a naked eye and from material hardly sufficient 395 T H E REPUBUC L. Loizou, J 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBUC L. Loizou, J. for the purpose. And although the witness concluded that, in his opinion, the holes on thejacket had been caused by contact shots one is, in the circumstances, left wondering about the correctness
his conclusion. The state
the evidence in this case on the issue
premedi- 5 tation isa matter
grave concern. Having regard to its nature and quality I feel that it is not possible for me to say that the verdict
the Court on this issue was either safe or satisfactory. The least that can be said is that there is room for grave doubt whether the killing was premeditated; and that the appellant 10 is by law entitled to the benefit
such doubt. In the light
the above I would allow the appeal to this extent, set aside the conviction for premeditated murder and substitute therefor a conviction for Homicide contrary to section 205
the Criminal Code. HADJIANASTASSIOU, J.: On March 3, 1977, at the Assize Court
Larnaca, the appellant was convicted
premeditated murder
the late Georghios Fotiou
Larnaca, acting in· concert with two accomplices, contrary to ss. 203 and 204 (as amended by Law 3/62) and ss.20 &21.
the Criminal Code, 20 Cap. 154. He was sentenced to death. He now appeals against conviction on a number
points
law. The facts can be put very shortly and are somewhat exceptional. On April 5, 1973, shortly after 9.15 a.m. the murder
the late Fotiou took place, during a very critical period for 25 the Republic
Cyprus regarding law and order. The victim
this terrible murder was the owner
a petrol station situated at Makarios III Avenue in Larnaca. He was residing with his family at his house at Singlitiki Street, not far from Grivas Digenis Avenue, which is a well lighted road. His brother- 30 in-law, Harris Georghiou, resided in a house adjoining that
the victim at Eleftheria Avenue, a side road
Grivas Digenis Avenue. The two aforesaid avenues are perallel to each other, situated not far
f the one from the other, at a distance estimated to be in the region
30-40meters. It is in evidence that 35 one can reach Maria Singlitiki Street from Thessaloniki Avenue following what may be described as an oblique route. The victim was a member
EDEK. party and on April 1, 1973, an ugly incident took place, viz., a bomb made up from a stick
dynamite was planted at his petrol filling station but 40 fortunately it. was discovered before it exploded by Harris 396 15 Georghiou and wassubsequently disposed
by P.C. Theofanis Efrem. After that incident quite naturally," the victim was feeling worried about the.safety
his property and
his person, and according to Vladimiros Charalambous, a friend, '5 Charalambos Georghiou, a brother-in-law, Harris Georghiou, another brother-in-law, and Neofytos Andreou, an employee
Photiou, thediscovery
thebomb, aswellas that therewas shadowing
their movements by the appellant, made them apprehensive about their safety and they decided to move 10 together becausethey thought theycouldfindsafety innumbers, particularly when leaving the petrol station at night time. According to "Vladimiros Charalambous, the following up started after some incidents'at the "Corner" cafeteria which took place on March 23 or 24, 1973. It was the case for the 15 prosecution'that on April 5, 1973, the appellant repeatedly followed the movements
the victim before the fatal events which took place at Thessaloniki Avenue later on in the evening. . In the meantime,.at about 7.00 p.m. Fotiou drove to the 20 house
his brother-in-law Charalambos Georghiou which is situated inthe Kalifadjia area. He wasaccompanied by Vladimiros Charalambous. - According to the latter, on three occasions at three different parts
the town, the appellant was seen following them, having as a passenger in his car a-certain 25 Clavdios Neocleous. In cross-examination, Vladimiros Charalambous was questioned about his failure to indicate at the preliminary inquiry which took place in'January, 1976, some
the details
the alleged following up near the premises
the Bishopric,and in 30 particular· his omission to state that at some stage the car
the appellant was following them by what has been referred to as "cross-roads". This witness, in his testimony said that hehad noexplanation tooffer for that omission andheadmitted that he ought to have mentioned that fact at the preliminary 35 inquiry as well. He further said that on their way back to the petrol station the car
the appellant was seen disappearing inside the premises
the Bishopric
Kitium, andfinally, on their return to the petrolfillingstation at.about 8.p.m. he saw the appellant once.more driving hiscar slowly-outside the 40 station
the victim; and it appeared to him that the former waswatching their movementsin the station, whilst in company with two'passengers. He identified one,,but'not.the, other. 397 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBUC Hadjianastassiou, J. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS V. Apparently, the incidents
following up or watching the said station continued, and just before closing down shortly after 9 p.m. witness Harris Georghiou and Neofytos Andreou saw the car
the appellant passing once more outside the station with two passengers in it, heading in.the direction
the police 5 station. THE REPUBLIC Hadjianastassiou, J. Therewasfurther evidencebyP.C.Kerimisthat thecar
the appellant was seen by him at 9.00—9.05 p.m. on the fatal night coming from the direction
the premises
EPA Club to Makarios III Avenue and heading in the direction
the petrol 10 station
the victim. That policeman identified the appellant as the driver
the car and also another"person alleged to be an accomplice, sitting in the rear passenger's seat. It was indeed the case for the prosecution that prior to the incidents at Thessaloniki Avenue, the appellant followed the 15 movements
the victim before their encounter, but the appellant, although he admitted that he passed outside the petrol station at times,hedenied theallegations that hewasshadowing the movements
Fotiou. On the contrary, he alleged that he himself was followed by the deceased on two occasions. 20 On April 5, 1975, the fatal night at about 9.00 p.m. Harris Georghiou, NeophytosAndreouand thedeceased left thestation together.travelling inaconvoy
carsfor safety reasonsinorder to reach their homes. When they came to a point on Grivas r, Digenis Avenue, the victim, for reasons not known—although 25 he was apparently in the middle
the convoy—overtook the car ahead
him, and that happened, according to Andreou, when the appellant appeared in front
them at the petrol station
Karkas. In the meantime, Georghiou had branched
f into Eleftherias Avenue without noticing the presence
the 30 car
theappellant on theroad, and when thevictimwas about to turn into Thessaloniki· Avenue. What followed when the victim entered Thessaloniki Avenuehasbeena matter
controversy between the-prosecution witnesses and the appellant. When Andreou, an employee
the victim, entered Thessa- 35 loniki Avenue, he saw the appellant alighting from his car which wasparked on the left hand side
the road, armed with a pistol or a revolver in his hand, standing in the middle
the road. The appellant wassignalling to thevictim to stop. The latter stopped in the middle
the road keeping his engine 40 running. Thentheappellant proceeded totheright
thedriver 398 byt the window,pane, and stood by the driver's .door, asking Fotiou; to alight, using these words: "Kateva kato-re, esi pou to aftokinifo", or "kateva kato". At the same time, his companions alighted, also armed with automaticsub-machine -5 guns, and took positions,to the left
the.car
.the victim. Theonewas standingtowards thefront.and theother,.Clavdios; towards the rear
the car. Apparently, because Fotiou was not-alighting from his car, the three culprits took positions round the car
the victim— 1 10 the two companions
the appellant having their weapons equipped with two magazines each. Inthe meantime, Clavdios asked witness Andreou to.alight, having earlier stopped, and havingalightedfrom hiscar,kepthishandsupashewasordered. It appears further that'the appellant repeated his demand for 15 the victim to alight from his car, and started banging on the driver's window panewith theweapon he had in his hand. At that stage, Andreou saw Photiou locking his door and then extending his arm to the left,.giving·the impression that he,was also locking thepassenger's doorat thesametime,thusevincing 20 a definite disinclination to comply with the insistent demand
the appellant that he should alight. Immediately, afterwards,· the witness added, the appellant firedtwo shots at the victim and as,a result
those two shots the latter made an effort to drive forward, and a burst
fire 25 was directed against him by one.
the- culprits. Because
that burst, the attention
Clavdios was directed elsewhere, and taking advantage
thatmomentary inattention, Anilreou ran in the direction
Grivas Digenis Avenue'and continued runningas bullets wereflying'roundhim,in orderto 30 prevent him from escaping. "However, he added thatas he was leaving he saw.the car
the victim'heading towards "the leftditch. He finally rang up Georghiou informing him
the events which had happened on that night. ΐ"In the meantime, Criton Georghiades,whilstin the study at 35 his home at 2 Thessaloniki Avenue, -heard someone shouting "Kateva kato re,· exo", then'insults, and the noise· produced when there-was"banging on the glass. Apparently,· in orderto have* a better look, he moved from-his position-to reach his U window opening into-Thessaloniki Avenue, and oh his way to 40 the"window he switched-
f'the-light.' -By the time-hereached the'window;-heheard shots andbursts,biit-he-wasunable to'tell 399 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. T H E REPUBLIC Hadjianastas siou, J. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. the sequence in which such shots had been fired. Heexplained that his experience in theuse
weapons wasextremely limited. Furthermore, he was unable to say whether the bursts
fire followed shots or viceversa, and added that it wasnot easy for him to distinguish between a pistol shot and a single shot fired 5 from an automatic submachine gun, as opposed to a burst. THE REPUBLIC Hadjianastassiou, J. When he reached the window, he saw through the grills a red coloured car with its lights on, moving towards the open space adjacent and to the left
Thessaloniki Avenue. In the meantime, as the carwasmoving, hisattention wasdiverted 10 to his left by a burst
fire, and when he turned to his right he saw a person standing in the street right outside the driver's seat, firing two or three shots towards the driver's seat. That person, he said, stood at a distance
between half and one foot from the driver's door; and a moment later he identified 15 that person as the appellant who entered a Morris traveller car Reg. No. BK. 615,that was stationary virtually opposite his house, and drove away. He was unable to identify the person standing next to that car, apparently one
the companions
the appellant. 20 Counsel on behalf
the appellant challenged the version put forward before the trial Court by both witnesses Neofytos Andreou and Criton Georghiades (a member
the political bureau
the Socialist party
EDEK); and the appellant ina statement from the dock gave a different account
what 25 happenedat thescene. ButtowitnessAndreou itwassuggested that both inhis testimony before the Coroner inquiring into the causesofdeath
thelateFotiou, on July 26, 1975,and before the examining Judge at the preliminary inquiry, he testified that the appellant hadfiredshots after Fotiou started
f from 30 his stationary position. In view
this important allegation putforward bythedefence, itisreallysurprisingthat thewitness said that he had no clear recollection
his testimony before the Coroner when the facts were more fresh in his mind, but he admitted the correctness
the suggestion made to him as 35 to what he said at the preliminary inquiry about the serious discrepancy, but nevertheless, he maintained that the version
events which hegave before theAssizeCourt wasthe correct one, viz., that the appellant fired twice at Photiou and then after the two shots the latter tried to leave the scene. There 40 was a further contradiction, because before the Assize Court that witness said that the number
shots fired at Fotiou were 400 twoorthree,andat theP.I. heput thenumber between onearid two:· On the other hand, it was suggested to Georghiades that he lied before theAssizeCourt onthebasisofa comparison
his 5 testimony before the Assize Court arid the Coroner. .Having looked at\his testimony before the Coroner, it appears that" whereas heidentified theappellant at the scene,hesaid nothing about seeing'him shooting at the victim from a close range or atalljandIfindmyselfinagreementwithcounselfor thedefence 10 that a truthful witness could not be expected to forget such an important piece
evidence. When this witness was asked the reason why, he replied that he wasalways with the impression that he left unwittingly something out from his account
the events given by him.before the Coroner. This statement, 1.5 to say the least, is entirely unacceptable because, in my view, being a member
a political party, he had everyJustifiable reason tobeagainstthemanwhom hehadseenkillingamember
his own party. On the night
April 5; 1973, Police Constables Theofanis 20 Efrem and Loucas Petrides, in passing along Thessaloniki Avenue, noticed the car
the victim stationary in an oblique position on the left hand side
Thessaloniki Avenue, on their way after dinner to resume their duties at Larnaca Central PoliceStation. Whenthey wereat adistancefrom thejunction 25
Thessaloniki and Grivas Digenis Avenues, estimated to be in the region on 170-180meters,they sawa car coming in their direction with headlights on. ,At the same time they heard shots. When they came closer' to the scene, another car started moving in their direction at a great speed. 30 In cross-examination, P.C. Petrides conceded that.at"the preliminary inquiry he stated that he had heard bursts only, but maintained before the Assize Court that he had heard both shots and bursts. The two police constables managed to take the registration number
the car BK 615, which admittedly 35 belonged to the appellant. It was further stated that as that car approached their vehicle in which they were driving, and the two vehicles were virtually side by side, bursts were fired in the air from inside thecar BK615. Then the two police constables approached the scene where 40 the car
the victim was in its resultant position, and parked their car on the left-hand side
the road near thejunction
401 Oct. 31 KYRIACOS NICOLA KOUPPIS v. T H E REPUBLIC Hadjianastassiou, J. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBUC Hadjianastassiou, J. Thessaloniki Avenue with Grivas Digenis Avenue. They also noticed the car with itslights on and without inspectingthesaid car, P.C. Petrides telephoned the police ftom the nearby coffee shop—police constable Efrem remaining on the pavement keepingwatch. Within afewminutesapolicepatrolcararrived headed byP.S.Victorloannou,togetherwithP.C. Constantinou. There wasanother policeman in that police car, but for reasons not known, the prosecution did not call him, and although during the appeal counsel for the appellant was complaining that a witness ought tohave been available to him, in myview, the complaint is notjustified because once counsel knew it was for him to decide whether it was to the interest
his client to obtain astatement from him,and/or tocallhimtogiveevidence. Thepolice, having parked their car near thecar
thevictim, on the left side
the road, they alighted immediately and 15 approached the said car. According to P.S. loannou, the victim was leaning on the steering wheel and as they opened the driver's door they realized that Fotiou was unconscious and his body began falling outside when the door was opened. P.S. loannou, with thehelp
hispolice colleagues, Kythreotis, 20 Petrides and Efrem, removed the body
thevictim and placed it in their car DM 747. Immediately they carried the victim to the hospital for medical treatment.. Counsel for the appellant cross-examined the police at length as to the circumstances under which they approached the car 25
the victim, the manner
opening the door
the car and the way they removed the body
the victim. Furthermore, counsel suggested that one
the police constableswhoassisted in the removal
the victim from his car took possession
a pistol found insidethecarand handed it overshortly afterwards 30 to the brother-in-law
the victim Harris Georghiou on his arrival at the scene
the incident shortly after its occurrence. Itis true that Harris Georghiou, having heard the shots and having received a telephone call—apparently from Neofytos Andreou, he drove to the scene, but according to him, he kept 35 at a distance and in no way approached the car
the victim or any
the policeconstables at the sceneoftheincident. He denied the allegation that a police constable handed over to him a pistol belonging to the victim. There was a further allegation on behalf
thedefence that P.C. Marios Kythreotis· 40 was the first to open the door
the car.
.thevictim and had, 402 10 the opportunity to remove the pistol allegedly in the possession
the victim. On the other hand, P.S. loannou in his testimony before the Assize Court, gives details
how they approached the car
'5 the victim"simultaneously with P.C. Kythreotis. 'He further said that he opened the door, he pulled the deceased slightly upwards in order to facilitate his removal from the car and that subsequently with thehelp
the policeconstables Petrides and Kythreotis, they movedthebody
thevictim to the police 10 car. There was further corroboration by P.C. Efrem
the allegation
Harris Georghiou that his stay at the scene was momentary and that he did not approach P.C. Kythreotis. Furthermore, in spite
the fact that witness Efrem 'modified theevidence hegave at the preliminary inquiry, whenhe stated 15 that it was Kythreotis whoopened the door, and said that P.S. loannou and Kythreotis approached the car simultaneously and that he was unable to say which
the two policemen opened the doo'r, nevertheless, there is no reliable evidence as to what had happened to the pistol, allegedly in the possession 20
the deceased, having regard particularly to the rest
the articlesfound inthecar
thevictim. In anyevent,oneshould not forget the tragic situation during that period when the police and a fraction
the people were divided and law and orderhad suffered a seriousblow. 25 When the victim was removed to the hospital, Sgt. loannou and P.C. Efrem remained guarding the scene until the arrival
Chief Inspector Makns, who arrived there at about'21.30 hrs.' 'He gave instructions to a number
policemen whowere summoned to the scene including Neofytos' Solomonides, a 30 sergeant serving with the CID wtio was detailed as the investigating
ficer, and the police photographer P.S. Pavlos Papachnstoforou.. The investigation began ana the photographer took a number
photographs
the car
the victim and the spot where the expended cartridges were found. 35 On the other hand, the investigating
ficer'found inside the car, two projectiles .45 calibre in the open space between the driver's door and the driver's seat, a third projectile 9 mm. calibreon thefloorof thecarin front
the driver's seat andan expended cartridge case9mm.on thefloorof the car behindthe 40 driver's seat.· In the car and under the mat covering thefloor infront
thedriver'sseattheyfound apistol orrevolverleather 403 1977 Oct 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC Hadjianastassiou, J 1977 Oct. 31 case adjusted on a waist belt containing four live rounds
ammunition 9 mm. calibre. KYRIACOS There was a search in the street also and on the berm near the car
the victim he found scattered about a number
expended cartridge cases. He also found one live round
5 ammunition 9 mm. calibre and upon the removal
the car he recovered a projectile from a position near the front left wheel
thecar
thevictim initsresultant position. According to the investigation
ficer, he recovered in all eleven cartridge cases .45,two
which were found the following dayat 10 points 40 feet and 50feet away from the car
the victim in its resultant position in the direction
the leper home. He also recovered from the street three cartridge cases 9 mm. calibre in addition to the one recovered under the car. He then prepared a plan toscaleonwhichhesketched the position 15
thecar initsresultant positionand indicated thepointswhere the expended cartridge cases were recovered from exhibit II. Itappearedfrom astudyofthatplanthattheexpended cartridge cases were found at two separate spots at the scene separated between them at a distance in the region
70 feet. In fact, 20 P.S. Solomonides explained that thephotographer was not able to photograph all the cartridge cases found at the sceneas only ten had been recovered by the time he took photographs 14, 21and 22. Theexpendedcartridgecasesfound byP.S.Solomonides at the scene as well as the projectiles were submitted to 25 the ballistics' expert for examination and his opinion. NICOLA KOUPPIS v. THE REPUBUC Hadjianastassiou,J. Thefindingsof P.S. Solomonides at the scene are supported in some respects by the testimony
Chief Inspector Makris, particularly as to the calibre
the cartridge cases found at the scene and their number. In fact, it was the testimony
both 30 Chief Inspector Makris and the investigating
ficer that the expended cartridge cases were photographed in the place they were found excluding
course expended cartridge cases that were recovered from thesceneby P.S.Solomonides subsequent to the departure
the photographer from the scene. The 35 photographer photographed alsothecaranditisapparent from these photographs that the window pane next to the driver's seat had been smashed and had virtually disappeared, whereas thewindow screen had twobigholesandwasshattered all over. It appears further that the only two panes that were unaffected 40 were the rear screen and the rear right window pane. According to Ag. P.S. Sakkadhas, on the following morning 404 he'collected fragments
broken glass from the scene. And on the following morning from the windscreen and the. window pane-by the driver's seat from a-point under the frame·
the window, that were subsequently submitted to Mr. Symeou, the .5 Government analyst,- for examination and .'analysis. Ag. P.S: Sakkadhas also recovered from the scene a projectile that he found to be lodged at the rear
.the front passenger's seat'in the car
.the deceased. He had collected also fragments
glassfrom the floor
the car
theaccused earlier, and.on that 10 date he submitted them for examination, by the Government analyst. ·• - 15 20 25 30 '. : 35 40 At-.the.hospital, the victim was received by sister Kyriakou, who applied first aid until the arrival
Dr. Poyiadjis, the duty
ficer for the night. I must add that the doctor arrived at a commendable speed, and within a matter
minuteshediagnosed that- Georghios ;Fotiou was dead. Then sister Kyriakou unclothed the deceased and arranged for the removal
thedead body to the mortuary
the hospital. As she was.undressing the victim, a projectile fell from the hand
the deceased, but, neither P.C. Petrides nor sister Kyriakou had a clear recollection from which hand it fell. Sister Kyriakou also,recovered from' the possession
the deceased a magazine,loaded with.10 live rounds
ammunition 9mm.
which P:C Petrides took possession for purposes
.investigation. In due course the magazine was examined by Ag. Inspector Andreas Christofides,.and was found to be
the type that fits on a luger automatic pistol; he also examined the rounds'
-arrimunition which he found to be serviceable and were
9 mm.-calibre. P.C. Petrides received also the clothes
the victim, but-apparently, the shirt
the victim wasnot produced at thetrial and no-one was ina position to inform the Court
what had happened to it. The body
the victim wasplaced in the mortuary under police guard until 10o'clockon thefollowing day when a post mortem examination was conducted by Dr. Kyamides, the Government pathologist in the presence
Chief Inspector Andreas Makris, who gave directions as to the investigation
-this case; Ag. Inspector Neofytos Solomonides (then a police sergeant); the investigating
ficer
the case and Kyriakos Theodotou Photiou, the brother
the victim, who identified the body. Dr. Kyamides described in detail the injuries he found on the victim, and according to his opinion as to the cause
death,the deceased metwith hisdeath asa result
shock and haemorrhage 405 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v; THE· REPUBUC Hadjianastassiou, J: 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC Hadjianastassiou,J. produced by the multiple wounds inflicted upon his body, though no single wound in itself produced death, in that none
thewoundshadpierced any
theultra sensitive parts
the body, something that could be expected to cause instantaneous death, such as the brain substance and the heart. The doctor 5 had no difficulty to state that all the wounds had been caused by bullets. He further removed from the body
the victim 2 projectiles (one from the throat by the larynx and the other from the smallfingerof the left hand). The remaining projectiles that had pierced the body
thedeceased had both entry 10 and exit wounds, caused by a bullet, except for a wound in relation to which the projectile had been lodged into the body
the victim and the doctor considered it inappropriate to attempt to recover it. Therehasbeen a lot
criticism bycounsel for the appellant, 15 and I think I share the criticism, because I am not convinced that the reasons put forward by the doctor, i.e. that it was inappropriate to attempt to recoverit,werejustified, and inany event,it deprivedboththeprosecution andthedefence
checking the calibre
that projectile. The two projectiles that had 20 been removed from the body
the victim were submitted for examination. It is significant to state that the two projectiles were
different calibre, a fact indicating that the victim had been hit from bulletsfiredfrom more than one firearm. The two projectiles were
.45 and 9 mm. calibre. 25 Quite rightly, counsel for the appellant cross-examined at length Dr. Kyamides withregard tothebulletwounds found by him at the back
the deceased and on the surface
the right shoulder blade towards the back. The precise position
the wound on the shoulderbladebecamea veryimportant point in 30 thewholeof the cross-examination, but Dr. Kyamides wasnot in a position to help a lot on this thorny point, because he disclaimed any special knowledge in reading photographs and insisted, irrespective
the impression one is apt to get by viewingphotograph 36,that the wound waswhere hedescribed 35 it to be. In order to resolve this point, the prosecution called for thefirsttimeevidencebeforetheAssizeCourt,and according to the ballistic expert Ag. Inspector Christofides, who also examined the coat
the victim—which was kept at the police station wrapped in paper for a period
4years, the.shots that 40 caused two
the holes in thejacket, were caused (a) the hole at the back by a contact shot, that isa shotfiredfrom a maxi406 mum range
2 inches from thejacket; (b) the hole by the right shoulder
the jacket caused by a contact shot fired from a slightly longer range, that is to say, from a maximum distance
6 inches from- the hole. 5 Then the ballistic expert, having explained his reasons for coming to that conclusion, said that the insignia and characteristics
those holes make further examination unnecessary considering that the holes had been caused by what he described as "contact shots". Furthermore, this ballistic expert examined 10 (a) Eleven expended cartridge cases .45.calibre recovered by the investigating
ficer at the scene
the incident; (b) four expended cartridge cases 9 m.m. calibre recovered by Inspector Solomonides, two from a point near car GL 691 in its resultant position, one from a position inside the car, and one from a 15 point at the scene by the first bunch
scattered cartridge cases nearer to the right facing the direction
the leper home in comparison to the other cartridge cases 13 feet from the left edge
the road facing in the same direction
the leper home; (c) All the projectiles and live round
ammunition found on 20 the body
the victim and in the car
the accused; (d) Eight expended cartridge cases .45 recovered from the car
the accused; and (e) two expended cartridge cases 9 m.m. calibre recovered from the same car. - The ballistics' expert reached these conclusions:25
the M. 3 type; and that it was the same machine gun that discharged the eight cartridge cases .45 that were found in the car
the accused;
9 m.m. found in the 30 car
the accused had been fired from "an automatic machine gun known as Marcip. I think I would recall that according to the testimony
Neophytos Andreou, the two companions
the accused carried a sub machine gun each.
evidence, one.may draw the inference that at the scene
the incident shots were fired not only from an automaticsub machine gun, but from a pistol as 40 well 407 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBLIC Hadjianastassiou, J. 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBUC Hadjianastassiou, J. The ballistics'expert further explained that thecartridge cases found inside the car
the victim might have been discharged by a weapon held by a personfiringat him or from a weapon firedby the deceased. In effect, the testimony
the expert on this point was that thecartridge casehad been dischaiged from 5 a weapon fired inside the car or from a position very near the car, depending on the position
the weapon.
the Vulter or Luger type,or from a type
Browning pistol; and
the victim could take a pistol
the Luger type and the rounds
ammunition found in thepossession
thevictim wereofthe9m.m.calibre. The ballistics' expert, quite understandably, was unable, because
lack
sufficient material before him, to identify 15 the weapon from which any
the projectiles had beenfired, except that he thought that they had been fired from an automatic weapon. He further explained that there are automatic machine guns as well as automatic pistols falling within the description
an automatic weapon. In substance, I think I 20 would reiterate that the most significant part
the evidence
this ballistic expert, who was cross-examined at great length suggesting to him that his examination unless supported by laboratory tests, was not
any weight, was that the shots that caused two
the holes in thejacket
the victim were caused 25 by contact shots. Theposition wasfurther complicated when theexpert witness was questioned as to the hole above the left side
the pocket
the jacket in question, and his reply was that he could not tell the distance from which the shots werefiredbecause it was 30 different from the previouscases,due to the absence
signsof tearing or gun powder residue around the hole or due to the fact that there was no feasible gun powder residue. The same version was given by him with regard to another hole under the left upper pocket
the jacket. -Then, the said witness, 30 having agreed that for investigation purposes the holes on the jacket
the victim ought to have been examined the earliest possible, he was questioned in these terms:-' "Q. Do you agree with me that in order to determine the distance from which the shot had been fired we had 40 408 10 :to have a laboratory analysis
the gun powder if there was gun powder? A. In some cases we make this analysis; where, however, there is a tearing
the cloth and the signs
gun powder residue are evident, we avoid the chemical analysis. Q. Can you tell by looking at the two holes above referred to that there is a residue
gun powder or evident signs that they have been caused by a shot? 10 A. There is a blackening round the hole which is very. similar to traces
gun powder. ' Q. Can you say whether there is unburned gun powder? A. No, not with the naked eye. 15 Q. If wc have a contact shot do you agree that we shall have a bursting
the flesh? A. It is the laceration1of a wound which is characteristic
a contact shot. 20 25 30 Q. Can you tell us in relation to the jacket before you regarding the first two holes... the type
the projectile that had caused them and the quantity
gun powder that the round
ammunition contained? A. I cannot tell the calibre
the projectile. In the case
thefirsthole Inoticed that thegun powder is limited to the diameter
one inch approximately which is an indication
the fact that the shot had been a contact shot. I cannot say the quantity
the gun powder that the round
ammunition in question contained. Q. Looking at the first hole which you described on the jacket, if the shot had been fired vertically, i.e. the barrel
the weapon was in a vertical position in relation to the jacket, would you expect it to cause the hole you see in front
you? A. Yes. 35 Q. Assuming that the victim
this shot was a driver sitting inside the car with the window pane closed and assuming that the shot came from someone firing outside the car while the windows were closed, would 409 1977 Oct. 31 KYRIACOS NICOLA KOUPPIS v. THE REPUBUC Hadjianastassiou, J. Oct. 31 KYRIACOS NICOLA KOUPPIS V. THE REPUBUC Hadjianastassiou, J. you expect to find these results speaking about the firsthole? A. No, under no circumstances". In fact, laboratory testswerecarried out only by the Government analyst, Dr. Symeou, regarding the fragments
glass submitted to him by thepolice and came to the conclusion that all thefragments had emanated from the samepiecesofglass. 5 There isno doubt that it wasall alongthecasefor theprosecution that the appellant and his accomplices waylaid thevictim at a spot at Thessaloniki Avenue and killed him in perpetration 10
aplanconceived longbefore theappellant found theopportunity to execute the victim; and that the details
which were worked out after extensive shadowing over a period
time designed to elicit the movements
the victim during day and night. On the contrary, the appellant, after the incident at 15 Thessaloniki Avenue,abandoned his.car onthewayto Meneou and disappeared. Heappeared again onJuly 15,1974,—on the same day
the Cyprus Coup—and took possession
his car in September, 1974 on the instructions
the then Divisional Police Commander
Larnaca. This indeed presents another 20 deplorable situation which, pieced together with the failure
the police to keep, or indeed examine the windscreen
the car
thevictim,deprived onceagain theresponsible authorities tocheck whether thebroken piecesofthewindscreen came from inside the car and/or from the outside. Although a warrant 25 for the arrest
the appellant had been issued, it was not executed until November 21, 1976. Finally,when theappellant wasarrestedbythepolice,andhavingbeencautioned,he replied "Take me to Evdokas". Then in answer to the formal charge, the appellant denied that he had committed the crime he now 30 faces. • The appellant, as I said earlier, called only one witness. He did not go into the witness box himself, but elected to make an unsworn statement from the dock. In the course
the statement he denied firing at the victim and said:- 35 "I was carrying a gun years before the 4th April, 1973, and so were many
my friends and acquaintances. In that year before 4th April, 1973 the situation in Cyprus ' amongst the.Greeks was abnormal, and the same position wasprevailing in Larnaca. Weweredivided in supporters 40
Makarios, Grivas, Lyssarides, Leftists and others. We, 410 .the supporters
.Grivas who constituted the unionist .party,.were the victims
many oppressions by theistate •and the parastate. Many incidents took place, and there followed,."destruction
property, beatings, murders
unionist fighters, and also the blowing up
houses
unionist fighters. Among the properties destroyed in Larnaca,' were the blowing up
the 'Corner' cafe, the cars
Yiannaki Soteraki,
Kyriakos Difros the book seller, and many others. The incidents a t . the 'Corner' cafe reached the District Court
Larnaca and the Supreme Court. I and my friends who were with me were among those who volunteered for protecting the ex Bishop
Kitium who was a supporter
the unionist party. Among the other disputes was also the ecclesiastical problem. Moreover, as I was residing in an isolate place, in fact in an almost desolate place in a farm house near the bypass
Larnaca, and because my house was also close to an area inhabited by Turks, I was carrying arms almost continuously. Furthermore, the Turks, by an announcement
Bayrack radio station had promised to pay an amount
five thousand' pounds toany one who would kill me. I participated actively in all armed struggles which took place in this country. It is a fact that neither myself nor my party trusted the security
the State in the hands
the Government because many policemen had been seen planting bombs at various "places. I was' acquainted with Fotiou for many years. I was on good terms both with Fotiou, his brother Kyriacos and his father. I was a self-employed person at that time and I kept a farm. I was delivering milk to various houses within Larnaca with my car BK. 615. Among those areas was Drosia and the area opposite the petrol station
Fotiou. The distribution was taking place at different times because the cows were milked veiy early in the morning and in the afternoon as well. During the deliveries
milk I was passingalmost every time from the petrol station
Fotiou because it was on my-way and near my house. I-am left handed and I and my friends who were with me late in the afternoon
5th April, 1973,were armed as always.-. Because my friend Kakis was keeping his car— 411 Oct-31 KYRIACOS NICOLA KOUPPIS v. THE REPUBUC Hadjianastassiou,'J.: Oct. 31 KYRIACOS NICOLA KOUPPIS which was his only property—in a garage exactly opposite the petrol station
Fotiou, we passed from that area to check his car, as
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.