clr/1977/1977_2_92.pdf

1977 March 8 GEORGHIOS COSTI KARAMANIS [L. Loizou, HADJIANASTASSIOU AND MALACHTOS, JJ,] GEORGHIOS COSTI KARAMANIS, Appellant, v. V. THE POLICE THE POLICE, Respondents. (Criminal AppealNo.3775). Findings offact—Appealturning onfindingsoffact basedon credibility of witnesses—Court ofAppeal willnotinterfere with such findings unlessthere are goodgrounds justifying such a course—Appeal against convictionfor indecent assault on afemale—Complainant's version acceptedbytrial Court—Accused'sevidence notbelieved— 5 Court of Appealfarfrom convinced that thisisa caseinwhich it couldinterfere with the conviction—Appeal dismissed. The appellant wasconvicted of the offence of indecent assault on a female, contrary to sections 151 and 35 of the Criminal Code, Cap. 154 and was sentenced to nine months' imprison- 10 ment. The trial Judge accepted the version of the prosecution and believed the evidence of the complainant who impressed him as very truthful witness to the extent that he could be prepared to act upon her evidence even if there was no corroboration. On 15 the other hand the accused made a very bad impression to the Judge and he did not believe his evidence. Theaccused appealed against conviction. Thesoleground on whichthe appeal wasargued related tothequestion ofcredibility ofthewitnessesand thefindingsofthetrial Court based thereon. 20 Counsel submitted in this connection that there were reasons which did not justify the findings of the trial Judge that the version of the prosecution should be believed and he has particularly stressed the place where the offence was committed,the condition of the complainant and her reaction at the time of 25 the offence. Held, dismissingtheappeal,that thematter turnsona question of credibility and as stated by this Court time and again unless there aregood groundsjustifying suchcourse it will not interfere with findings of fact based on the credibility of witnesses; that 30 92 havingheard counseltoday this Court isfar from convinced that this is a case in which it could interfere with the conviction and the appeal will, accordingly, be dismissed. Appeal dismissed. 1977 March8 GEORGHIOS COSTI KARAMANIS v. 5 Appeal against conviction. Appeal against conviction by Georghios Costi Karamanis who was convicted on the 20th December, 1976at the District Court of Nicosia (Criminal Case No. 26021/76) on onecountof the offence of indecent assault on a female, contrary to sections 10 151 and 35 of the Criminal Code, Cap. 154 and was sentenced by Boyadjis, S.D.J, to nine months' imprisonment. M. Christofides, for the appellant. V. Aristodemou, Counsel of the Republic, for the respondents. 15 The judgment of the Court was delivered by:- L. Loizou, J.: The appellant appeals against his conviction by the District Court of Nicosia for the offence of indecent assault on a female contrary to sections 151 and 35 of the Criminal Code, Cap. 154. The offence is alleged to have 20 been committed on the 31st July, 1976, shortly before noon. The trial Court found the appellant guilty of the offence and sentenced him to nine months' imprisonment. He has filed an appeal from the prisons without the assistance of counsel in which the sole ground given is that "I am innocent." 25 Today learned counsel for the appellant, who appears for him at the request of the Court, has stressed to us that this is an appeal against conviction only and not against sentence and he has quite fairly stated that the sole ground he can argue relates to the question of credibility of the witnesses and the findings 30 of the trial Court based thereon and he has submitted that there are reasons which do not justify the findings of the trial Judge that the version of the prosecution should be believed and he has particularly stressed the place where the offence was committed, the condition of the complainant and her reaction 35 at the time of the offence. It is not, according to learned counsel's argument, reasonable to believe that the appellant would commit an offence of this nature in a hospital ward with an open door leading to the corridor even though the complainant's bed was not visible from the corridor nor was it 93 THEPOLICE 1977 March 8 natural for the complainant to keep quiet and not scream while the offence was being committed. GEORGHIOS The complainant is approximately 24years of age and she is mentally retarded falling within the category of mild mental retardation or moronity with an I.Q. of 58 out of the normal 5 ranging between 95and 109,but that this isan underestimate of her intelligence because of lack of cultural and educational experience. In addition to the above the complainant, always according to the medical evidence, presents spasticity of the lower extremes and she cannot walk as a result and she has a 10 certain degree of social and emotional inadequacy. She also suffers from dysarthria, which, as well as her inability to move her legsare due to cerebral paralysis but her condition isstable. The medical evidence was given by Dr. Andreas Georghiades, a principal clinical psychologist in the Ministry of Health who 15 was called by the defence; he has further stated that the complainant can very successfully render facts that took place and describe details about them and that shewas,ifshewanted, in a position to fabricate a story; her dysarthria, he said, did not prevent her from screaming. 20 COSTI KARAMANIS y. THE POLICE Coming now to the appellant. He is, according to the evidence, a widower 57 years of age, he comes from Politico village where he lives with his daughter, an unmarried girl of 20 and is employed in Nicosia as a labourer. Onthe dateof thecommission ofthisoffence thecomplainant 25 was an inmate in the psychiatric wing of the Nicosia General Hospital and in view ofher condition shewaslyingin bed. In the same ward there were four orfiveother women but at the time of the commission of the offence all of them except a very old woman who, according to the evidence, was not, in view of 30 her condition, in a position to appreciate what was going on around her, were in the T.V. room of the ward. The version of the prosecution isthat whilst the complainant was in bed and there was a nurse in the ward the accused went to the ward and asked some information regarding a certain 35 woman from Ormidhia bythenameofVarvara. Thenursetold him to go and wait in the T.V. room as it was not allowed for visitors to roam about in the wards and that she would see to it that the patient he was looking for was taken to him and thereupon the appellant left the ward. When the nurse who 40 is P.W.2, Kyriaki Georghiou,finishedshe went out of the ward 94 into the next ward where there was'in fact a patient by the name of Varvara, she got this patient ready and assisted her out and into the T.V. room so that the appellant might see her but the appellant had already left. . ' ' 1977 a ^_ GEORGHIOS COSTI KARAMANIS '5 The complainant-has stated in evidence that after the nurse left the ward the appellant went there again, he approached her, he kissed her, he took hold of her breasts and also lifted her nightgown and touched her private parts. This girl had a very unfortunate experiencewith her father who had sexually attacked 10 her in the past and used to beat her up when she shouted. She did not react in any way, she said to what the appellant did to her but she kept silent and did nothing because of fear that he might also beat her. The appellant on his part does not deny that he entered the 15 psychiatric wing of the hospital nor does he deny that he went to that very ward where the complainant was lying but his version isthat when he went there he only saw the complainant, he tried to get information from her regarding the patient he was looking for but he could not understand her and he left. 20 Soon after the alleged indecent assault the complainant spoke to the nurse and itwould appear to some other women who were patients there, she explained to the nurse what the appellant had done to her and described him. The appellant was traced by this nurse sitting on a bench outside the hospital wing and 25 the nurse asked him to go back to the ward with her which he did very reluctantly and the complainant saw him and identified himthereand thenasthepersonwhohad indecentlyassaulted her. Thereafter the police were called and the appellant made a statement exhibit 1 in which he describes how he happened to 30 meet a woman from Ormidhia by the name of Varvara about two days earlier and how he undertook to assist her being admitted to the hospital and that she told him that she would be at the hospital on the 30th of the month i.e. a day before this offence was committed. 35 Be that as it may, the trial Judge who heard the evidence and saw the witnesses had no hesitation whatsoever in accepting the version of the prosecution. The complainant impressed him as averytruthful witnessto theextent that hewould be prepared to act upon her evidence even if there was no corroboration. 40 On the other hand the accused made a very bad impression to the Judge and he did not believe his evidence. So really the 95 .v. THB POUCE 1977 March 8 GEORGHIOS Costi matter turns on a question of credibility. This Court has stated time and again that unless there are good grounds justify*nS s u c n c o u r s e it will n o t interfere with findings of fact based on the credibility of the witnesses. KARAMANIS v. THB POLICE Having heard counsel today we are far from convinced that 5 this is a case in which this Court could interfere with the conviction and the appeal is, therefore, dismissed. Appeal dismissed. 96