(3)(

1. b)and (
2. c)of the European 5 Convention on Human Rights of 1950—Right to legal assistance of one's own choosing guaranteed only in the case where the fees are to bepaid by the individualhimself—Appellants declining to be defended by advocates assigned to them by Court by way of free legal aid—Above Articles not violated. 10 Criminal Procedure—Count—Addition—Principles applicable—Section 85

(4)of the Criminal Procedure Law, Cap. 155—Acquittal on count of robbery and additionof new count of stealing—Appellants not prejudiced in their defence. Criminal Law—Joint offenders—Common intention—Robbery and 15 sodomy—Committed by threepersons infurtherance of a common intention—Omission to refer expressly in the counts concerned to sections 20 and 21 of the Criminal Code, Cap. 154—Not a material irregularity and has not in any wayprejudiced the appellants or misled them—Section 39 of the Criminal Procedure 20 Law, Cap.

1. Criminal Law—Robbery—Ingredients of the offence—Intention to rob—Specific intent—Intoxication. Criminal Law—Evidence—Sodomy with violence—Corroboration— Whether Court canactonuncorroboratedevidenceof complainants. 25 152 2 C.L.R. Foarri & Others τ. Republic Criminal Law—Parties to offences—Aidors and abettors—Sodomy with violence—Committed by three persons acting in concert— Question of identification,as to whichof the threepersons actually committed the act, unnecessary— 5 Criminal Procedure—Charge or information—Statement of offence or its particulars—Error—Effect—Section 39 of the Criminal Procedure Law, Cap.
2. Evidence—Corroboration—Sexual offences—Sodomy with violence— Whether Court can act on uncorroboratedevidenceof complainants. 10 Criminal Law—Sentence—Robbery—Sodomy with violence and stea­ ling—Concurrent sentences of six years' and two years' imprison­ ment—Nature of offences and personal circumstances of the appellants who were of young age and first offenders—Sentences not manifestly excessive or wrong in principle. 15 The three appellants were tried at the Assize Court of Larnaca and found guilty on one cout of the offence of robbery ("count 1"), on two counts of the offence of "unnatural offence with violence" ("counts 6 and 7") and on two counts of the offence of stealing ("counts 8 and 9"); they were each sentenced to six years' imprisonment on each of counts 1, 6 and 7 and two years' imprisonment on counts 8 and 9, all sentences to run concurrently. Counts 8 and 9 were added by the Assize Court pursuant to the provisions of section 85

(4)* of the Criminal Procedure Law, Cap. 155. 20 25 30 35 At about 4.30 in the morning of the 7th May, 1978, the appel­ lants, three young men aged about twenty, met the two complai­ nants, two young Austrians in their early twenties serving in the Austrian Contingent of the U.N. peace-keeping force (complainants "Hoffer" and "Muller") at a hotel discoteque near Ayia Napa village. They were all in a merry mood and at about 5.30 in the morning they left the discoteque whereupon the complainants requested a lift from the appellants to the nearby Ayia Napa village. Appellant 1 agreed to give them a lift in his lorry but instead of stopping near complainants* house at Ayia Napa, as requested by them, he drove on in the direction of Paralimni village, despite complainants' protesta­ tions and their efforts to stop the car, and stopped in an open Quoted at pp. 176-77 post. 153 Fourri & Others τ. Republic

(1980)space between Paralimni and Sotira villages where the complai­ nants were violently pulled out of the lorry. When out of the lorry appellant 2 removed by force from the possession of complainant Hoffer his watch, his wallet and gold ring. Com­ plainant Hoffer tried to run away but appellant 1 caught up 5 with him and knocked him down. The above articles were found hidden at a spot in the house of appellant 2 which was indicated to the police by this appellant. Appellant 3, in his statement to the police, admitted beating up the complainant, at the above stop. After the removal of the aforesaid articles 10 from the possession of complainant Hoffer, which formed the subject-matter of the robbery charge (count 1) the appellants drove away but soon returned and chased the complainants and put them into the lorry by force. The lorry was then driven to and stopped at an isolated spot near Xylophagou river. There 15 complainant Hoffer was violently dragged out of the car his clothes and underclothes were forcefully removed and appellant 1 committed sodomy upon him. Following this, another member of the company committed sodomy upon him whilst one of the appellants held down his legs. Complainant Muller 20 was subjected to a similar treatment and appellant 3 committed sodomy upon this complainant. The appellants then removed the clothes of the complainants, left them virtually naked and drove away. These clothes were found by the Police in the possession of appellant 2. The removal of the clothes of the 25 appellants formed the subject-matter of 2 counts of robbery (counts 2 and 3). The Assize Court acquitted the appellants on these 2 counts and added, under section 85

(4)of Cap. 155, 2 counts (8 and 9) for ordinary larceny with regard to the items contained in the particulars of counts 2 and 3, having held 30 that proof of a specific intent was an essential ingredient of the counts of robbery and the presence of such intent viz. use of violence for the purpose of stealing has not been established; and that proof of theft was an ingredient of the offence of robbery and no conceivable prejudice could be occasioned to the appel- 35 lants by the addition of the new counts. With regard to the charge of robbery (count 1) the Assize Court found that specific intent, an essential ingredient of the offence of robbery was present because though the appellants were merry because of drink, they were by no means drunk 40 to the point of being incapable to form a specific intent; and 154 2 C.L.R. Fourrl & Others v. Republic because they acted with cunning and deliberation, planned their movements very carefully, resisted the attempts of the complainants to bring the car to a halt and committed the acts complained of in count 1 at a deserted spot. 5 With regard to the offence of sodomy the Assize Court, after warning itself about the danger of acting on the uncorroborated evidence of the complainants, held that it was prepared to "act on the evidence of the complainants even in the absence of corroboration"; and that even if it were to search for corroboration there was ample corroborative evidence emanating from the statements of the appellants that sodomy had been committed, from the finding of spermatozoa on the anus and underpants of the complainants, from the fact that appellants were with the complainants at an isolated spot and from the recovery of the belongings of the complainants from the possession of appellant 2. 10 15 20 The appellants were committed for trial on May 24, 1978, and their trial started on June 5, 1978. At the commencement of the trial there appeared defending counsel for appellant 3, but appellants 1 and 2, who had been defended by counsel at the committal stage, appeared in person and stated that due to lack of financial means they could not appoint counsel to defend them. 25 The trial Court decided to assign an advocate to defend at public expense appellants 1 and 2, pursuant to the provisions of section 64

(1)* of the Criminal Procedure Law, Cap. 155. 30 Appellants 1and 2 then named six advocates so that one of them could be assigned by the Court to defend them; five of them were contacted but none accepted to do so, and the sixth happened to be abroad at the time. 35 The trial Court proceeded then to assign as defending counsel of appellants 1 and 2 Mr. G. Nicolaides, who is one of the senior and most experienced advocates in Larnaca, but the appellants did not accept him and, so, he did not appear for them. The hearing of the case was adjourned on the following day, * Quoted at p. 186 post. 155 Fourri & Others τ. Republic

(1980)at the request of the appellants, but again none of the advocates indicated by them would accept the brief. Appellants were then asked if they wanted another advocate but they applied for further adjournment so that they would be able to speak with the advocates indicated by them and persuade them to accept. 5 The trial Court, however, decided, in the circumstances, to proceed to hear the case with appellants 1 and 2 appearing in person andwithout having thebenefit of the services of defen­ ding counsel; in doing so the trial Court stated expressly that 10 it would take care to see that appellants 1 and 2 would not be prejudiced because they were not defended by counsel; and, actually, in delivering judgment the trial Court stressed that throughout the trial it was fully conscious of its duty to ensure that the fact that appellants 1 and 2 were not represented by 15 counsel did not operate unfairly against them. Upon appeal against conviction and sentence Counsel for the appellants contended: (a) That the Assize Court by proceeding with the trial of the appellants as it did, it did not offer them their 20 minimum right to have adequate time and facilities for thepreparationof theirdefence, contrary to Articles 12.5(b) and 30.3(b)

(3)(

1. b)of the European Convention on Human Rights of 1950; anddidnotafford to theappellants theoppor- 25 tunityofdefending themselves through a lawyer of their choice, contrary to Articles 12.5(
2. c)and 30.3(d)

(4)of Cap. 155 and moreover such 35 addition was prejudicial to the appellants as two of them were undefended by counsel. (

1. d)That as section 21 of the Criminal Code,Cap.154 was 156 2 C.L.R. Fomri &Othersv. Republic not referred to together with section 20 in the counts of robbery and sodomy with violence on the information (counts 1,6 and 7) the appellants could not have been found guilty of acting in concert. 5 (
2. e)That the intention to rob, which is an ingredient of the offence of robbery, had not been established by the prosecution more so since its version was that the intention of the appellants was to satisfy their lust on the complainants. 10 (
3. f)The trial Court erroneously found appellants guilty oncounts6and7oftheoffence ofsodomywithviolence inasmuch asit erroneously acted without corroboration of the complainants* evidence. 15 (
4. g)That the sentences were manifestly excessive in view of the state of mind in which the appellants were at the material time, their age, their past clean record and their excellent social investigation reports. Held,(I) on the contention of the appellants that theywere not defendedby counselat the trial: 20 25 30 35 (A) Per A. LoizouJ., MalachtosJ.concurring: That Article 6, paragraph 3(
5. c)of the European Convention on Human Rights does not guarantee to an individual legal assistance of his own choosing except only in the case where the fees are to be paid by the individual himself (seetheCaseLawoftheEuropeanCommissionofHumanRightsatpp.168-171 post asitisinevitablethatfor theinterpretation oftheprovisions of the European Convention on Human Rights domestic tribunals would turn to the interpretation given by the international organs entrusted with the supervision of their application, namely the European Court and the European Commission of Human Rights); that, therefore, the fact that the Assize Court went out of the guaranteed rights and tried to secure legalassistanceoftheappellants*ownchoosingisacommendable conduct and shows a very high sense of fairness towards the appellants; that the choice of an advocate in that respect by the Court was not in violation of either the Constitution or the Convention; that the trial Court duly warned itself of therisks that a criminal trial of this nature might entail when an accused person is not defended by counsel; that there is nothing in the 157 Fourrl & Others v. Republic

(1980)record to suggest that that warning which the Court gave itself wasnotpresent initsmindthroughout theconduct oftheproceedings; and that, accordingly, contention (a) must fail. (B) Per Triantafyllides P.: That the developments whichledtoappellants1and2defending 5 themselves at their trial in person, and not through counsel, didnot resultin anybreachofArticle 12.5(c)ofthe Constitution or of Article 6

(3)(c) of the European Convention on Human Rights; that though these two appellants had no right to choose the advocate who would be assigned to them, by way of free 10 legal aid, by the trial Court, under Article 12.5(c)

(3)(c) of the Convention or any miscarriage of justice (see the CaseLaw of the European Commission of Human Rights at pp. 25 187-190 post). Held, (II) on the appealagainst conviction: PerA. LoizouJ., Triantafyllides P. andMalachtos J. concurring:

(1)That the ingredients of theft had been established; that there was ample evidence duly warranting the finding of the 30 trial Court that the articles, forming part of the two former counts of robbery, and which formed also the ingredient of the two new counts of stealing, were taken and carried and thrown away in circumstances suggesting an intent to deprive the complainants permanently thereof; and that, accordingly, conten- 35 tion (b) must fail.

(2)That for a Court to act under section 85

(4)of Cap. 155 and add new counts to the charge or information the following requisites must be present: (

1. a)It must be established by evid158 2 CX.R. 5 10 15 20 25 30 35 40 Fourri & Others v. Republic ence that the accused has committed an offence not contained in the charge or information; (
2. b)that the accused cannot be convicted without amending the charge or information; (
3. c)that theaccusedmustnotupon hisconviction onthenew offence be liable to a greater punishment than if he were convicted on the charge or information as it stood, in other words that the punishment provided by law for the added offence must not exceed that of the original offence; (
4. d)that the accused would not be prejudiced by the amendment in his defence (principles laid down in Chrysostomou v. Police, 24 C.L.R. 192 at p. 194 adopted); that counsel for the appellants has conceded that requisites (a),(
5. b)and (c)were satisfied; that no reason has been given by him as to how the two undefended appellants could possibly have been prejudiced in their defence; that, on the totality of the circumstances, the trial Court acted properly and no prejudice was caused to the appellants by the addition of the twonewcounts for the lesser offence of stealing, contrary to section 266(
6. a)of Cap. 154; and that, accordingly, contention (
7. c)must fail.

(3)Thattheomission torefer expressly inthecountsconcerned to sections 20 and 21 of Cap. 154 is not a material irregularity (see Constantinides v. Republic

(1978)2 C.L.R. 337 at p. 376); that no error in stating an offence or its particulars is to be regarded as non-compliance with the provisions of the Law unlessintheopinion of the Court theaccusedwasinfact misled by such error (see s. 39of Cap. 155);that, considering the evidence adduced and all the circumstances of the case,no prejudice was caused to the appellants and they were not misled by the omissions; that it wasobvious that thecharges preferred against them were to the effect that they aided and abetted one another in committing both the offences of robbery and sodomy and having formed a common intention to prosecute this unlawful purpose in connection with one another, their commission was a probable consequence of the prosecution of such purpose; that it was not necessary that each act committed in relation to that offence should be committed by all so long as the one wascontributinginhisownwaytothecommission ofthe offence of robbery; that therewasample evidencefrom which the Court could safely and beyond reasonable doubt conclude that the threeappellantscommittedjointlytheoffences; and that, accordingly, contention (d) must fail. 159 Fourri &Others τ. Republic

(4)On the contention that theintention to rob, anessential ingredientof the offence of robbery, had notbeen establishedby theprosecution themore sosince itsversion was that the intention of the appellantswasto commitsodomyon the complainants: That theoffences of robbery are covered byaconductatthe 5 first stage of this serial of incidents, whereas the offences of sodomy were committed at a much later stage; that therewas nothing in theevidence to suggest that theappellants did not have two different intentions at twodifferent times andplaces when they hadthetwo complainants in their grip; and that, 10 accordingly, contention (e) must fail.

(5)That this Courtisinfull agreement with thelegalapproach of the trial Court, regarding the question of corroboration in sexual offences, and adopts its reasoning (pp.183-85 post); that having found that the appellants were correctly held to 15 have acted in concert andaided andabetted each other of the commission ofthe offences ofrobbery and sodomy, the question of the identification as towhich ofthe three actually committed the actof sodomy oneach of the twocomplainants isunneces­ sary; and that, accordingly, contention(f)must fail. 20 Held, (III)on the appeal against sentence: (A) Per A. Loizou J., Malachtos J. concurring: ThatthetrialCourtdirecteditselfproperly bothastothenature of the offences and the personal circumstances of the three offenders; that it was indeed a beastly conduct which offended 25 human dignity; that there was nothing manifestly excessive about these sentences, northere has been anything wrong in principle so as to justify an interference of this Court with the exercise ofa function which inthefirstinstanceis entrusted to the trial Courts toperform; and that,accordingly, the appeal 30 against sentence must, also, fail. (B) Per Triantafyllides P.: That, notwithstanding the need for a lenient approach to be adopted by theCourts in relation toyoung persons, especially if they are first offenders, the need that sentences have to be 35 individualized, and the contents of the social investigation reports, which show that theappellants arepersons who have repented for what they have done and who arelikely to reform and become, once again, good citizens, thesentences imposed 160 2 C.L.R. 5 10 15 Fourri & Others τ. Republic in the present case are not wrong in principle or manifestly excessive, because the conduct of the appellants was, indeed, most condemnable and uttertly disgusting and it had to be punishedinamannerwhich would abundantly show thatconduct of thisnaturecannotbetoleratedinthiscountry;andthatthough it might perhaps be said that the sentences which were passed on the appellants, though they were amply warranted in the circumstances of this case, are rather severe, in view of the young age, clean past records and other personal circumstances of the appellants, this is not a consideration entitling this Court to interfere with such sentences, once it has not been shown to the satisfaction of the Court that they are either wrong in principle or manifestly excessive. Held, further, by Triantafyllides P., that though all three appellantswereundertheinfluence of drinkwhiletheycommitted offences in question, drunkenness, except in cases of alcoholism, cannot be accepted by itself as a strong mitigating factor. Appeals dismissed. Cases referred to: 20 25 30 35 40 Ofner v. Austria (Application No. 524/59) Year book of the European Commission of Human Rights, 1960, Vol. Hi p. 322; X. v. TheFederalRepublic of Germany (Application No.6501/74) Decisions and Reports of the European Commission of Human Rights, 1975, Vol. 1, p. 80; X. v. Austria (Application No. 6185/73)2 Decisions andReports of the European Commission of Human Rights p. 68 at p. 78; X. v. TheFederalRepublic of Germany (Application No.6946/75) 6 Decisions and Reports of the European Commission of Human Rights p. 114 at pp. 116, 117; Chrysostomou v. The Police,24 C.L.R. 192 at p. 194; Mehmet v. ThePolice

(1970)2 C.L.R. 62 at p. 68; Constantinides v. TheRepublic

(1978)2 C.L.R. 337 at p. 376; X. v. Austria(Application No. 2676/65) 23 Collection of Deci­ sions of the European Commission of Human Rights p. 31 at p. 35; X. v.Norway (Apphcation No.5923/72) 3DecisionsandReports of the European Commission of Human Rights p. 43 at at P· 44; 161 Fourri & Others v. Republic

(1980)X. v. United Kingdom (Application No. 8295/78) 15 Decisions and Reports oftheEuropean Commission of Human Rights p. 242 at p. 244; Ensslin andOthers v. The FederalRepublic of Germany (Applications Nos. 7572/76, 7586/76 and 7587/76) 14 Decisions 5 and Reports of the European Commission of Human Rights p. 64 at p. 115; X. v. TheFederal Republic of Germany (Application No.646/59) 3Yearbook of the European Commission of Human Rights p. 272 at pp. 276-278; 10 X. v. Austria (Application No. 4338/69) 36 Collection of Decisions of the European Commission of Human Rights p. 79 at p. 82; X. v. UnitedKingdom(Application No. 5871/72) 1 Decisions and Reports of the European Commission of Human Rights 15 p. 54 at p. 55; X. v. Austria (Application No. 2645/65) 11 Yearbook of the European Commission of Human Rights p. 322 at p. 348; Articov.Italy(Application No.6694/74)8Decisionsand Reports of the European Commission of Human Rights p. 73 at 20 p. 89; Meytanisv. The Police

(1966)2 C.L.R. 84at p. 85; Mina v. The Police

(1971)2 C.L.R. 167 at p. 170; Mavrosv. ThePolice

(1975)2 C.L.R. 171at p. 180. Appeals against conviction and sentence. 25 Appeals against conviction andsentencebyVarnavas Christofi Fourri and others who were convicted on the 12th June, 1978 at the Assize Court of Famagusta (Criminal case No. 1437/78) on one count of the offence of robbery, contrary to sections 282, 283 and 20 of the Criminal Code, Cap. 154,on two counts 30 of the offence of unnatural offence with violence, contrary to sections 171,172and 20of the Criminal Code and on two counts of the offence of stealing, contrary to sections 255

(1), 262

(1), 266(

1. a)and 20 of the Criminal Code,Cap. 154 and were sentenced by Pikis, P.D.C., Pitsillides, S.D.J, and Constantinides, D.J. 35 to six years' imprisonment on the robbery and on each of the 162 2 C.L.R. 5 Fourri & Others v. Republic unnatural offences counts and to two years' imprisonment on each of the stealing counts, all sentences to run concurrently. L. N. derides, for the appellants. CI.Antoniades,Counsel of the Republic, for the respondent. Cur. adv. vult. The following judgments were read: TRIANTAFYLLIDES P.: The first judgment will be delivered by Mr. Justice Andreas Loizou. .A. Loizou J.: The three appellants were tried by the Assize 10 Court of Larnaca and found guilty of the following offences: 15 20 (
2. a)Count 1—robbery of L/Cpl. Hoffer Karl by stealing from him one wrist watch valued C£20.—, one gold ring valued C£50.—, one purse containing C£2.500 mils, having used actual violence on him and Pte. Floel Muller Karl, both of Austria, now AUSCON Camp, contrary to sections 282, 283 and 20 of the Criminal Code, Cap. 154. (
3. b)Count 6—Unnatural offence .with violence on the aforesaid L/Cpl. Hoffer Karl, contrary to sections 171, 172 and 20 of the Code. (
4. c)Count 7—Unnatural offence with violence on the aforesaid Pte. Floel Muller Karl, contrary to sections 171, 172 and 20 of the Code. 25 30 (
5. d)Count 8—Stealing a pair of shoes, a pair of trousers and one lighter, property of the aforesaid Hoffer Karl, contrary to sections 255

(1), 262

(1), 266(

1. a)and 20 of the Code. (
2. e)Count 9—Stealing one pair of shoes, one pair of trousersand one chain with a metal identity, the property of the aforesaid Pte. Floel Muller Karl, contrary to sections 255

(1), 262

(1), 266(a) and 20 of the Code. They were acquitted of the remaining counts. In fact, the 35 two counts 8and 9 were added by their judgment, pursuant to the provisions of section 85

(4)of the Criminal Procedure Law, Cap. 155. 163 A. Loizou J. Fourri & Others v. Republic

(1980)The sentence imposed on them was six years imprisonment each on counts 1, 6 and 7, and two years imprisonment on counts 8 and 9; all sentences to run concurrently. The appellants appealed against conviction and sentence and in so far as conviction isconcerned, thegrounds maybe divided 5 into two groups: (

1. a)those of alleged procedural irregularities, and (
2. b)those that come under the heading, that the verdict of the Assize Court was unreasonable, having regard to the evidence. The three appellants, who at the time were represented by 10 counsel were committed for trial onthe25th May, 1978,without there having been held a preliminary inquiry as provided for under section 92 of the Criminal Procedure Law, Cap. 155, but the substance of the statement of each prosecution witness whom the prosecution intended to call was served in advance 15 on the accused. This course wasadopted under the provisions of section 3 of the Criminal Procedure (Temporary Provisions) Law 1974, (Law No. 42 of 1974). On the 5th June, 1978,when they first appeared before the Assize Court, appellants 1 and2were notrepresented by counsel 20 and on being asked about it they said that they were poor and they could not engage an advocate. Appellant 3 was duly represented by counsel. After inquiring about their financial position and having in mind the nature of the offences for which they were to stand 25 trial, the Assize Court decided that it was in the interest of the administration of justice to appoint under section 64 of the Criminal Procedure Law Cap. 155, an advocate or advocates depending on their choice to defend them. The Assize Court then asked them if they had an advocate of their choice whom 30 they would want to be appointed provided, of course, such advocate was prepared to accept the brief. Their choice, eventually, was for counsel appearing before us in this appeal, whose law office isin Nicosia. The Court noted the disruption caused by this delayed application for legal assistance, yet it 35 asked the Registrar of the Court to communicate with counsel and inquire whether he would be prepared to accept the brief. The Assize Court was then informed that not only Mr. Clerides but two other advocates who had been also mentioned by the 164 2 C.L.R. Fourri & Others v. Republic A. Loizou J· twoappellants,answered inthenegativeand sotheAssizeCourt felt that it should face the problem of appointing an advocate to undertake the defence of the two appellants. During the break it invited through the Registrar Mr. G. Nicolaides, an 5 experienced lawyer of Larnaca with long practice and inquired of him if he was prepared to undertake the defence of these appellants. His answer was a positive one as he felt that in that way he would help the administration of justice. The two appellants were then asked by the Assize Court if 10 theywanted him to defend them. Theysaid they did not know this advocate and that they wanted only anyone of the three advocates thattheyhad namedearlier,but asthosenamed made itclear that theywerenot accepting thebrief, the Court felt that the impossibility to satisfy the wishes of the appellants as to 15 their-choice of advocate, should not be used as a means to dictate the conduct of the proceedings and in the exercise of its dutiesunder therelevant sectionofthelaw,itdecidedtoappoint Mr. G. Nicolaidestoundertakethedefence ofthetwoappellants asitconsidered itnecessaryandintheinterestofthe administra20 tion of justice. It then had a break sothat Mr. Nicolaideswould come to the Court and state formally his acceptance of the brief, when, as it said, the Court would examine any application of his for a possibleadjournment of thecase,so that timewould be offered 25 to him to be prepared. It then went on to say that if Mr. Nicolaideswasoftheopinionthattherewasanyconflict between the defence of thefirstand the second accused, then the Court would examine the possibility of engaging a second advocate. After a short break, Mr. Nicolaides appeared in Court and 30 stated that out of respect to it it accepted the brief but he felt that the two appellants were not willing to cooperate with him as they had certain misgivings. He further stated that if the casewastogo onwithhim as defence counsel hewould request anadjournment untilthefollowingday,sothathe wouldcontact 35 the two appellants and receive instructions after going through the record. The Assize Court then remarked that it could not compel them to be defended by counsel whom they did not approve. The two appellants then asked for some time to consider if they would engage another advocate. The case was 40 then adjourned for thefollowing day. Itwarned the appellants 165 A. Loizou J. Fourri & Others v. Republic

(1980)that by then they should inform the Court which advocate they wanted to defend them, provided he was ready to do so as the Assize Court was not prepared to waste its valuable time with inquiriesastotheengagement ofanadvocate. Itthenremarked that "undoubtedly wewant to secure the rightsoftheappellants 5 to be defended properly before the Assize Court, that being their fundamental right, but that right cannot be left to lead to the frustration of the proceedings". On the following day, the Registrar of the Court, who in the meantime communicated with the three ones already named 10 and with two new ones indicated by the appellants, informed the Court that none of themwould accept thebrief. Theywere then asked if they wanted another advocate and they said that they wanted a further adjournment so that they would be able to speak with these advocates and persuade them to accept. 15 They asked that they wanted to go personally and see these advocates. The President of the Court then addressed to the appellants the following: "I shall repeat the question which I put to you yesterday. Do you want the Court to find an advocate who isprepared to defend you?". Thefirstappellant 20 said: "I do not recognize the advocate who will be appointed by the Court and who isnot competent". Appellant 2said the same and added that he had no trust in that advocate. The Court then had ashort recessandgaveitsrulingwhereit speaks of the constitutional right of accused persons to be defended 25 bycounseloftheirchoiceortohavelegalaidifanaccusedperson has not the means to engage one himself, and went on to say the following: "To an inquiry of the Registrar whether they would wish theCourt to nameanyother advocate todefend them they 30 answered in the negative, a stand they adopted to-day before us, seeking a further opportunity to communicate with these advocates for the purpose and in the hope of persuading them to accept. This is a request we cannot satisfy considering that theaforesaid advocateshavealready 35 declined the brief and secondly this would cause an unjustified delay of the proceedings. The right of the accused to secure the services of an advocate of their choice,respectedas itis,it is not thesole consideration that should guide the Court in the exercise 40 166 2 C.L.R. 5 10 15 Fourri & Others v. Republic A. Loizou J. of its discretion and when the accused, relying on the purportedexerciseofthisright,seektocausewhat amounts, in the circumstances, to a disruption of the proceedings, surelyitisa stand that willnot becountenanced. Hadany oftheadvocatesnamedbytheaccusedexpressed willingness to accept the brief we would certainly afford him every reasonable opportunity to prepare the defence. But this is not the case before us. In our judgment it would be an abuse of the process of the Court to adjourn the proceedings in the circumstances of this case and this we shall not do. The proceeingsshallcontinue. Itiswellknownthat wheretheaccused is unrepresented care must be taken by the Court itself to see that the accused are not prejudiced thereby and this is a duty of the upholding of whichweare very muchalive and of whichweshall observe.Let theaccused becharged". Itwillbeuseful alsotoquoteherewhatwassaidbytheAssize Court in the opening paragraphs of theirjudgment in the case: 20 25 30 35 40 "At the outset of the proceedings an attempt was made by the Court to assign an advocate to defend accused 1 and accused 2 who appeared unrepresented. In fact, the trial of the case was interrupted for virtually two days in order to help in that direction. Much as wewished to assign an advocate this proved impossible owing to the persistent refusal of the accused to be represented by anybody other than the lawyers they named, who were, on enquiry made by the Registrar, unwilling to defend them. They added that they had no confidence in anybody else defending them and refused to be represented by an experienced advocate, namely, G. Nicolaides assigned by the Court to defend them. We could not, of course, oblige any of the lawyers named by the accused to defend them or impose on theaccused a lawyer to defend them against their wish. Nor could we adjourn the proceedings indefinitely in the hope ofthe accused persuading one of the lawyers they wanted toappoint to representthem in these proceedings. Throughout the trial we were fully conscious of our duty to ensure that the fact that accused were not represented did not operate unfairly against them and remained alert throughout to fulfil this task". 167 A. Loizou J. Fourri &Others τ.Republic

(1980)The first two grounds of law relied upon on behalf of these two appellants in these appeals are that the Assize Court by proceeding with their trial as it did, it did not offer them their minimum right to have adequate time and facilities for the preparation of their defence, contrary to Articles 12.5(b) and 30.3(b)

(3)(

1. b)of the European Convention on Human Rights of 1950 which has been ratified by Cyprus by the European Convention on Human Rights (Ratification) Law 1962, Law No. 39 of 1962; also that these two appellants were not afforded the opportunity of defending themselves through a lawyer of their choice, contrary to Article 12.5(
2. c)and 30.3(d)

(3)(

1. b)and (
2. c)of the Convention for all intents and purposes is identical to the aforesaid constitutional provision, except that in paragraph (
3. c)of our Constitution reference is made to a lawyer of his own choosing whereas in the Convention 25 reference is made to legal assistance of his own choosing, but we are not concerned with this difference—if it amounts to one—in this case. It is inevitable that for the interpretation of such provisions, domestic tribunals would turn to the interpretation given by the 30 international organs entrusted with the supervision of their application, namely the European Court and the European Commission of Human Rights. It is pointed out by Fawcett in his book "Application of the European Convention on Human Rights" 1969, p. 167, in 168 35 2 C.L.R. Fourri & Others τ. Republic A. Loizou J. commenting on paragraph 6

(3)(b) of the Convention the follow­ ing: 5 10 "The requirement of adequate time is the corollary of that of reasonable time in Article 6

(1). Just as the trial of a charge must not be undulyprolonged bypostponement or adjournments, so it must not be brought on before the defence is reasonably prepared. No general rule can be stated, since the balance between these differing needs must be struck according to the kind of proceedings involved and the facts of each case". As stated in the Digest of Case Law, relating to the European Convention on Human Rights 1955—1967 by reference to Ofner Case(Dec. Adm. Com. 524/59, Ofner Case: III, p. 322): 15 20 25 30 35 " in order to determine whether the right to have adequate time and facilities for the preparation of the defence has been respected, account must be taken of the general situation of the defence and not only of thesituation of the accused". With regard to the right of everyone charged with a criminal offence to defend himself through legal assistance of his own choosing it has been stated the following: "

1. Article 6, paragraph 3(c) of the Convention does not guarantee to an individual legal assistance of his own choosing except in cases where the fees are to be paid by the individual himself. (Dec. Adm. Com. 646/59: III, p. 272).
2. The fact that an applicant has not succeeded in getting the assistance of a lawyer does not involve the international responsibility of a Contracting Party, unless the refusal of lawyers to act is due, in fact to pressure by public authorities. (Dec. Adm. Com. 1420, 1477 and' 1478/62: VI, p. 590)". In X. v. The Federal Republic of Germany,Application No. 6501/74 of the 19th December, 1974, the Commission had had this to say: "According to the Commission's jurisprudence, in order to determine the question whether the right to have ade169 A. Loizou J. Fourri & Others v. Republic

(1980)quate time and facilities for the preparation of the defence has been respected, account must be taken of the general situation of the defence, in particular whether such defence is carried out by the accused himself or through a lawyer (see Application No. 2370/64, C. v. Austria, Collection of Decisions 22, p. 96)". 5 In the case of X. v.Austria,Application No. 6185/73 Decisions and Reports No. 2, p. 68, at p. 70, it was stated: "Article 6

(3)(c)guarantees the right of an accused 'to defend himself in person or through legal assistance of his own 10 choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require'. The applicant did have the assistance of a counsel of his own choice and was not refused free legal aid; as a matter of fact he has not even filed an application 15 for legal aid". In the case of X. v. The Federal Republicof Germany,Application No. 6946/75, in Decisions and Reports, No. 6, p. 114 at p. 116, it was held: "It is true that Article 6

(3)of the Convention guarantees to 20 everyone charged with a criminal offence the right to be defended through legal assistance of his own choosing or, if he has no sufficient means to pay for legal assistance, to be given it free of charge when the interests of justice so require. However, according to the Commission's case-law Article 6

(3)(c) does not guarantee the right to choose an official defence counsel who is appointed by the Court (Dec. on Admissibility of Application No. 646/59, Yearbook 3, p. 272 and No. 4338/69, Coll. 36, p. 79), nor does it 30 guarantee a right to be consulted with regard to the choice of an official defence counsel. (Decision on Admissibility of Application No. 1251/61, unpublished)". In the present case what isclearand apparent from the lengthy record on this issue which has been set out earlier in this judg- 35 ment, is that all three appellants were duly represented when committed for trial. Appellants 1 and 2 appeared undefended before the Assize Court and named successfully six advocates 170 25 2 C.L.R. 5 10 Fourri & Others v. Republic - Λ. Loizou J. in all that they wished to undertake their defence, all from districts other than the one in which the trial was being held. None of the five advocates contacted through the Registrar accepted the brief; the sixth one was absent abroad. The advocate or advocates to be appointed were to be paid out of public funds. When the efforts of the Assize Court failed to secure for the two appellants free legat assistance out of those counsel who were of the choice of the appellants it decided to appoint an experienced lawyer of Larnaca, whom the appellants turned down by saying that they did not trust him without giving any reason for that. It may be stated at this stage that in the light of the Case Law of the European Commission on Human Rights, Article 6,Para­ graph 3(c)of theConvention does not guarantee to an individual 15 legal assistance of his own choosing except only in thecase where the fees arc to be paid by the individual himself. The fact, therefore, that the Assize Court went out of the guaranteed rights and tried to secure legal assistance of the appellants' own choosing is a commendable conductand shows a very high sense 20 of fairness towards the appellants. It is in fact in line with the existing practice in Cyprus, though not strictly within the obligations imposed by the Constitution and those undertaken under the Convention. It was only when all these efforts failed that it appointed an advocate and at that a leading one,to defend 25 the two appellants, leaving him also the option to examine if there was any conflict in the defence of the two appellants, so that the Court would appoint another one, and give the two appellants one each. The choice of an advocate in that respect by the Court was not in violation of either the Constitution or 30 the Convention. In spite, however, of all these, the Court further adjourned the case for the following day, so that the appellants would have time to consider engaging an advocate of their own. They were explicit when they said finally that they would not recognize an 35 advocate appointed by the Court, and the first appellant said that he did not consider him as competent and the other that he did not trust him. It was in those circumstances that the Assize Court decided to proceed with the case without an advo­ cate. Obviously the tactics of the appellants were in fact 40 nothing but delaying tactics and in the last analysis disrespectful to the whole process of the Court. Under the guise of the 171 A. Loizou J. Fourri & Others v. Republic

(1980)rights guaranteed by the Constitution and the Convention, accused persons should not be allowed to ridicule the judicial process or play with the valuable time of the Courts. I avail myself of this opportunity to point out that applications for free legal representation should, whenever possible, be made before the date fixed for appearance in Court and it will be conducive to that direction if committing Judges, Prison Authorities and other persons involved in these issues, as well as advocates who may originally appear for suchpersonsand thengiveup thebrief, inform such accused persons of these rights. 5 10 The question that the appellants were not afforded adequate time and facilities for the preparation of their defence was not pursued in this appeal in any event. When first brought before the Court for trial they were represented by counsel. If they were unable to pay they could apply for the granting to them 15 of free legal assistance. They did not do so, however. Instead they embarked upon those delaying tactics which the Assize Court handled with fairness and firmness befitting the good administration of justice. Finally, it should be noted that the Court duly warned itself 20 of the risks that a criminal trial of this nature might entail when an accused person isnot defended bycounseland there isnothing in the record to suggest that that warning which the Court gave itself was not present in its mind throughout the conduct of the proceedings. 25 For all the above reasons I have come to the conclution that there is no merit in these two grounds of appeal which therefore fail. I have not dealt with Article 30, paragraphs 3(b)(

1. c)and (
2. e)as counsel very rightly said that it does not take the case of his 30 clients any further and therefore I need not embark on an analysis of its nature and its application. Iturn now to the facts of thecaseasfound bythe Assize Court and the conclusions drawn thereon for the purpose of examining the remaining grounds of appeal. The complainants are two young Austrians in their early twenties, serving in the Austrian Contingent of the U.N. peacekeeping force in Cyprus. The one is L/Cpl. Hoffer Karl who 172 35 2 C.L.R. Fourri & Others v. Republic A. Loizou J. will be referred to as "Hoffer" and the other Pte Floel Muller Karl, of the Austrian Contingent of the United Nations peace keeping force in Cyprus, who will be referred as "Muller". They spent the evening of the 6th to the 7th May, 1978, at the 5 discoteque of Nissi Beach Hotel and they were in a merry mood having consumed some quantity of alcohol. At about 4.30 in the morning of the 7th, the three appellants who are also in their twenties, visited the same discoteque, being also in a merry mood after having visited several places of entertainment 10 during that evening. At about 5.30 in the morning, the complainants and the appellants left the discoteque. The complainants requested a lift from the appellants to Ayia Napa village nearby. Appellant 1 agreed to give them a lift and the two complainants 15 occupied the passenger's seat in the driver's cabin of the lorry which was driven by him and the two other appellants got at the back in the body of the lorry. Before reaching Ayia Napa, appellants 2and 3stepped down from the body of the lorry and stood on the door-step outside the passenger's door, so making 20 anyattempt onthepart of thecomplainants to escape impossible. The two complainants requested appellant 1 to stop at Ayia Napa when the lorry approached a convenient spot near their house but he refused and instead drove on in the direction of Paralimni village despite the protestations of the complainants 25 and their concerted attempts to cause the vehicle to stop. Whilst on this point it may be mentioned that the Assize Court acquitted the appellants on counts 4 and 5 which charged them with the kidnapping of the two complainants respectively in order to subject them to their unnatural lust,contrary to sections 30 251 and 20 of the Criminal Code. It did so inasmuch as it could not, as it said, discern the reason why the appellants refused tostop the lorry at Ayia Napa. It felt that itwas equally possible that they refused to do so because they intended to rob them and not because they wanted to satisfy their unnatural 35 lust and as the intent attributed in the said two counts, namely, to subject the two complainants to their unnatural lust could not beinferred positively and to theexclusion ofany other intent. As the efforts of the complainants to stop the car by pressing the switches in front of them and by trying to get hold of the 40 steering-wheel failed, because their attempts were warded off 173 Λ. Loizou J. Fourri & Others v. Republic

(1980)by appellant 1, a powerful man, the lorry proceeded until it stopped in an open space between Paralimni and Sotera villages where the complainants were violently pulled out of the lorry. The complainants could not give details regarding the parti­ cipation of each of the three appellants. Witness Hoffer could not say whether appellant 3took part in this violent act. When out of the lorry appellant 2 removed by force from the possession of complainant Hoffer his watch, his wallet, and gold ring. Hoffer tried to run away but appellant 1 caught up with him and knocked him down. Complainant Muller also tried to run away but he was overwhelmed by appellants 1 and 2, also of powerful physique as described by the Assize Court. On the 9th May, 1978, appellant 2, whilst in custody led the Police to his house and indicated to them the stolen articles at the place where he had hidden them, under a cage; they were seized by the Police and made exhibits at the trial. 5 10 15 Appellant 3, in his statement to the Police, to which more reference will be made later in this judgment, admitted beating up the complainants at their first stage stop having felt, as he alleged, angry because of their behaviour. 20 These events surrounding the removal of the aforesaid articles from the possession of complainant Hoffer at the first stop formed the subject-matter of count 1, a charge of robbery. The Assize Court in finding the appellants guilty on count 1 had this to say in its judgment: 25 "We have carefully examined the evidence before us and had the opportunity to see the witness testifying before us. Learned counsel for accused 3 in his final address invited us to find as a fact that throughout the incident accused 3 was so drunk as to be incapable of forming a specific 30 intent. Thus he submitted we should acquit the accused, even if we accept the evidence of the complainants on all charges proof of which is dependent from the presence of specific intent. The charges of robbery presuppose specific intent in that violence must be applied for the specific 35 purpose of achieving the theft or enabling the culprit to carry away the fruits of theft 174 2 C.L.R. 5 10 15 20 Fourri & Others v. Republic A. Loizou J. It is obvious from the evidence before us and weso find, that the three accused acted in concert throughout this venture. This is the reason why, shortly before arriving at Ayia Napa, accused 2 and 3 descended on the side doorstepinordertomakeapossibleescapeofthecomplainants impossible. At their first stop the three accused again acted inconcert and usedviolence in order to rob the complainants. In deciding whether the prosecution proved beyond reasonable doubt the commission of the offence set out in count 1,wehave given serious consideration to the state of mind of the accused at the time. From the evidence looked at in its totality, it appears that the accused were merry because of drink but by no means drunk to the point of being incapable to form a specific intent. The accused acted with cunning and deliberation and planned their movementsverycarefully. They resistedthe attempts of the complainants to bring the car to a halt, committed the acts complained of on count I in a deserted spot and then returned to the scene ". Before dealing with the events that followed and thecommission of the offence of sodomy which is the subject of counts 6 and 7,reference may bemade totheacquittal ofthethreeappellants oncounts2and 3onthe information for robbery, contrary 25 to sections 282, 283 and 20 of the Code. The particulars of these offences were that they stole a pair of shoes, a pair of underpants and one lighter, property of complainant Hoffer and a pair of shoes, underpants and one chain with a metal identity disc, property of complainant Muller. 30 The Assize Court acquitted the three appellants on these two counts.and added under section 85

(4)of the Criminal Procedure Law two new counts, counts 8 and 9,for ordinary larceny with regard to theitems contained intheparticulars ofcounts2and 3 and found them guilty thereon. It said that it did so as it 35 was a proper case for that course, and as proof of theft is an ingredient of the offence of robbery and "no conceivable prejudice could be occasioned to the accused", by that addition, as stated by the Assize Court in its judgment. 175 A. Loizou J. Fourri & Others v.Republic

(1980)In arriving at that conclusion the Assize Court had this to say: "It is not altogether clear why the accused carried away the clothes of the complainants after committing sodomy upon them. It is equally possible that they carried their clothes away for the purpose of making the escape of the 5 complainants harder than it might otherwise be; and inasmuch as proof of specific intent is an essential ingredient of counts 2 and 3 and the presence of such intent, viz. use of violencefor thepurpose ofstealing ha"-not been conclusively established and it has not been proved that violence was 10 exerted for removing the remaining belongings of the complainants referred to on counts 4 and 5, we shall acquit and discharge the accused on counts 2 and 3". I have dealt with this point as one of the arguments advanced by counsel for the appellants was that the Court erroneously found appellants guilty on the added counts 8 and 9 inasmuch as they were acquitted on counts 2 and 3. 15 I do not subscribe to that argument and the reason is obvious. The ingredients of theft had been established; there was ample evidence duly warranting the finding of the trial Court that the 20 items forming part of the two counts and which formed also the ingredient of the two new counts of stealing were taken and carried and thrown away in circumstances suggesting an intent to deprive the complainants permanently thereof. What the Assize Court found was that it was not altogether clear that 25 the violence used by the appellants was directed at the taking away of the articles in question exclusively and not used for the purpose of satisfying their lust and commit sodomy with which offence I shall be dealing later in this judgment. Whilst on this point I find it convenient to deal with the 30 ground of appeal that the addition by the Assize Court of the two new counts, counts 8 and 9 and the finding of appellants guilty on such added counts wascontrary to the letter and spirit of section 85

(4)of the Criminal Procedure Law, Cap. 155, and moreover such addition was prejudicial to the appellants as 35 two of them, namely appellants 1 and 2, were undefended by counsel at the trial. Section 85

(4)reads as follows: "If at the conclusion of the trial the Court is of opinion 176 2 C.L.R. 5 10 Fourri &Othersv.Republic A.Loizou J. that it has been established by evidence that the accused has committed ah offence or offences not contained in the charge or information and of which he cannot be convicted without amending the charge or information, and upon his conviction for which he would not be liable to a greater punishment than he would be liable to if hewere convicted on the charge or information, and that the accused would not be prejudiced thereby in his defence, the Court may direct a count or counts to be added to the charge or information charging the accused with such offence or offences, and the Court shall give their judgment thereon as if such count or counts had formed a part of the original charge or information". As it appears from its text and pointed out also in the case of 15 Panayiotis Chrysostomou v. The Police, 24 C.L.R., p. 192, at p. 194,for a Court to act under the said sub-section the following requisites must be present: 20 "(

1. a)It must be established by evidence that the accused has committed an offence not contained in the charge or information. (
2. b)That the accused cannot be convicted without amending the charge or information. 25 30 (
3. c)That the accused must not upon his conviction on the new offence be liable to a greater punishment than if he were convicted on the charge or information as it stood, in other words that the punishment provided by law for the added offence must not exceed that of the original offence. (
4. d)That the accused would not be prejudiced by the amendment in his defence". Counsel for the appellants has conceded that requisites (a), (
5. b)and (
6. c)were satisfied. What he complains is that the appellants were prejudiced by the amendment in their defence. The main argument on this point being that they were unde35 fended by counsel at the time. No reason, however, has been given as to how the two undefended appellants could possibly have been prejudiced in their defence and to use the approach 177 A. Loizou J. Fourri & Others v. Republic

(1980)of the Court in Chrysostomou case (supra) "I am indeed at a loss to see how in such a clear case with such simple and clear facts could the appellants possibly be prejudiced in their defence". The Court in the present case has obviously directed its mind to the possibility of prejudice and was eliminated before recourse was made to the provisions of the section. 5 On the totality of the circumstances and in the light of the aforesaid statement of the Law, I have no difficulty in holding that the Court acted properly in the circumstances and that no 10 prejudice was caused to the appellants by the addition of these twonewcounts for thelesseroffence of stealing from the person, contrary to section 266(a) of the Code. As pointed out in the case of Fatma Mehmet v. The Police

(1970)2 C.L.R., p. 62, at p. 68: 15 " the provisions in this part of the Criminal Procedure Law (sections 83,84and 85)were the result of statutory amendments to enable the Courts to do justice in a case where technicalities might lead to acquittal notwithstanding proof of sufficient particulars to support a count; as 20 happened in several cases prior to the amendment of the statute". Grounds 3 and 4 cover the factual issues and legal points raised in connection with count 1 which covers a charge of robbery and counts 6 and 7, those of sodomy with violence. 25 It has been argued on behalf of the appellants that as section 21 of the Criminal Code wasnot referred to together with section 20 in the three aforesaid counts on the information, the appellants could not have been found guilty of acting in concert. This point was considered and decided upon in the case of 30 Constantinides v. The Republic

(1978)2 C.L.R., p. 337,at p. 376, where it was stated that ".... the omission to refer expressly in the counts concerned to sections 20 and 21 of Cap. 154 is not at all a material irregularity, nor had it prejudiced in any way the defence of the appellant". Moreover reference is 35 made in the aforesaid case to section 39 of Cap. 155 which 178 2 C.L.R. Fourri & Others v. Republic A. Loizou J. provides that no error in stating an offence or its particulars is to be regarded as non-compliance with the provisions of the Law unless in the opinion of the Court the accused was in fact misled by such error. 5 Considering the evidence'adduced and all the circumstances of the case, I find that neither prejudice was caused to the appellants nor were they misled by the omissions. It was obvious that the charges preferred against them were to the effect that they aided and abetted one another in committing 10 both the offences of robbery and sodomy and having formed a common intention to prosecute this unlawful purpose in connection with one another, their commission was a probable consequence of the prosecution of such purpose. It was not necessary that each act committed in relation to that offence 15 shouldbe committed by all so longas the one was contributing inhis own way to the commission of the offence of robbery so they have been found guilty of the offence found to have been committed there and then. In fact, there wasample evidencefrom which the Court could 20 safely and beyond reasonable doubt conclude that the three appellants committed jointly the offences. The argument advanced that at certain stages one of them or the other was a mere bystander, merely watching and therefore not liable as an aidor or abettor, is in direct conflict with the evidence 25 adduced, including what can be deducted from the statements of the three appellants. At this stage reference may also be made to the argument that the intention to rob, which is an ingredient of the offence in count 1, had not been established by the prosecution, more 30 so since its version was that the intention of the appellants was to satisfy their lust on the complainants. I do not agree with this contention as the offences of robbery are covered by a conduct at thefirststage of this serial of incidents, whereas the offences of sodomy were committed at a much later stage and 35 there was nothing in the evidence to suggest that the appellants did not have two different intentions at two different times and places when they had the two complainants in their grip. In fact, until the moment of stopping the lorry and stealing from complainant Muller the items contained in count 1, nothing 179 A. Loizou J. Fourri & Others v. Republic

(1980)showedthat thethreeappellantshadanyintention ofcommitting the offences of sodomy whichthey were found to have committed later. I shall deal now with the circumstances which were referred to as the second incident and which make up the facts for the 5 offences contained in counts 6 and

1. The appellants after committing the offence contained in count 1,droveawaybut soonreturned andchased thecomplainants who made an effort to run awaybut unsuccessfully as they were overwhelmed and put back into the lorry by force. They 10 were seated next to the driver, appellant 3, whilst appellant 2 was the fourth passenger in the driver's cabin and appellant 1 stood onthesidestep. Thelorrywasthendriventoand stopped at an isolated spot near Xylophagou river which appears in a number ofphotographs produced to the Court asexhibit
2. 15 Complainant Hoffer was violently dragged out of the car, he was put down on the ground, his clothes and under-clothes were forcefully removed and appellant 1,firsttried to kisshim and thereafter committed sodomy upon him. Following this, another member of the company committed sodomy upon him, 20 whilst one of the appellants held down his legs. Between the first and second incident of solomy one of the appellants put a finger in the anus of this complainant. The second person who committed sodomy on him,as well as the person whoput hisfingerinhisanuscould notbeidentified by thecomplainant. 25 Throughout the incident the complainant was lying prostrate on the ground. Complainant Muller was subjected to a similar treatment in the hands of the appellants. Appellant 2, first caused him to masturbate him ejaculating on his vest, then he tried but 30 unsuccessfully to commit sodomy upon him. His failure was attributed by the complainant to his resistance. Appellant 3, then committed sodomy upon this complainant whofelt bythen quite exhausted through the ill-treatment he suffered and the drink he had consumed earlier. The appellants removed the 35 clothes of the complainants and left them virtually naked and drove away. These clothes were eventually found by the Police in thepossession ofappellant 2and produced as exhibits. 180 2 C.L.R. Fourri & Others v. Republic A. Loizou J. A passing car took them to their home at Ayia Napa and the casewasthenreportedtothePolicewhichtookupinvestigations immediately. The three appellants were arrested on the 8th May, 1978, 5 and on the 10th May an identification parade was held at Paralimni Police Station where the two complainants without any difficulty identified the three appellants. With regard to this identification parade, the Assize Court commented that it wasconducted in a mostfair manner,as shownnot only bythe 10 evidence of the Police Officers involved, but also by a pictorial account of it through a number of photographs which were produced before them. Thecomplainantsandtheappellantsweremedicallyexamined. Thefindingsof Captain Leopold Koschatzki, at the UNFICYP 15 Famagusta, Medical Centre, are that both complainants appeared to him to be frightened and depressed. His findings regarding complainant Hoffer are as follows: (a) Swelling on the left part of the forehead; (b) abrasion on left side of the chest;(c)otherabrasionsonthechest;(d)abrasionsontheright 20 side of the neck; (e) haematoma on the anus; he experienced pain duringfingerexamination of the anus. The doctor found the following on complainant Muller: (a) left nostril—dried up blood and abrasions; (b) anus—trauma of an extent of 5 mm.; (c)cutting of theanus. The witness felt pain in the anus 25 and intestines. The doctor took from the complainants hair from theanus, internallyand externally, hair from theheadand a swab from the anus ofthecomplainant thathe sealed ineight sterilized glass containers that were submitted to the Government pathologist, Dr. Stavrinos, for examination and compa30 rison with other exhibits before us. (See exhibits 9(a)-9(h)). On the 9th May, 1978,the accused were medically examined with their consent by Dr. Christodoulides, a medical officer at Larnaca hospital. He found the following on them: On accused 1: (a) an abrasion on the right cheek bone suffered 35 within the preceding three to four days; (b) a small bruise on the outer part of the right shin-bone. On accused 2: (a) superficial scratches on the upper part of the elbow; (b) a small bruise on the outer part of the right thigh. On accused 3: small abrasion on the penis due either to trauma or infection. 181 A. Loizou J. Fourri & Others v. Republic

(1980)The doctor took hair from the genitalsof theaccused that were submitted for examination to Dr. Stavrinos (exhibits 19(a), 19(b) and 19(c)). The examination of the exhibits by Dr. Stavrinos revealed the following: "There werehuman spermatozoa on the underpants of both Hoffer and Muller as well as 5 on the vest of Muller. Human spermatozoa were also found on the swab taken from the external part of the anus of both complainants. The remaining exhibitssubmitted for examination were negative in the sense that no spermatozoa weretraced on them". 10 The appellants made statements to the Police that were received in evidence as voluntary and admissible. Their contents may besummed upasfollows: "Appellant 1 admitted in his statement (exhibit 3) most of the facts narrated by the complainants in their evidence but gave a different story as to 15 their motive and the circumstances under which they drove the complainants beyond Ayia Napa and committed sodomy upon them. I need not recount the details of his statement regardingactsofsodomy,sufficient tosaythathisallegationisthat they committed sodomy uponthe complainants at their request 20 andwiththeirencouragement,andnotonlythat,intheircontention oneofthecomplainants drewaknife and madea suggestive gesture implying thereby that they were invited to commit sodomy on the complainants. In his contention the knife was disposed of at a point subsequently shown to the investigating 25 officer but nothing wasfound at the alleged spot. Headmitted beating up the complainants after committing sodomy upon them for the alleged reason that they drew a knife onhim. He admitted that they toreup theunderpants inorderto leavethem naked at the scene. 30 Appellant 2 made, broadly speaking, a similar statement (exhibit 4) to that of appellant 1 admitting lewd acts at the allegedsceneofthecrimeaswellasbeatingupthecomplainants, repeating the alleged incident with the knife. Like appellant 1 he maintained that he was theworse for drink. He admitted 35 removing a number of articles from the possession of the complainants, that he hid at his house. The correctness of this part ofhis statement isborne outby the finding ofa number of articles at the house of this appellant. Like appellant 1 he 182 2 C.L.R. Fourri & Others v. Republic A. Loizou J. maintained that the complainants stripped off their clothes voluntarily and invited them to commit sodomy upon them. The story of appellant 3 revealed in his statement (exhibit 1) is more similar to the version of the complainants. He stated 5 that the complainants struggled after Ayia Napa to gain control of the car and further admitted that shortly afterwards they brought the car to a standstill and beat up the complainants. Thereafter they drove off in the direction of Ayios Stathis having covered the complainants with a canvas (exhibit 3) that they had 10 in the lorry. His narrative as to what followed subsequently was again strikingly similar to the version of the complainants: The three of them encircled one of the complainants, appellant 2 removed his clothes and subsequently after an act of masturbation he committed sodomy upon one of the complainants 15 whereas appellant 1proceeded towards the follow complainant of the person upon whom he committed sodomy. Appellant 3 when called upon to make his defence, made a statement from the dock totally different from that made to the police denying complicity inanyactsof sodomy or ill-treatment 20 of the complainants. He alleged that he was sleeping most of the time except when he drove the car from somewhere near Sotera to Ayios Stathis and fell fast asleep at the scene of the alleged commission of the acts of sodomy recovering consciousness when driven home. Neither in his statement to the police 25 nor in his unsworn statement from the dock does he make any reference to the complainants producing a knife. Of course it is well known that an accused's statement is only evidence against him and not his co-accused. The Assize Court then examined the principles with regard 30 to the corroboration required as a matter of practice in sexual offences. The position was summed up as follows: 35 "Though the participants in the crime of sodomy cannot be regarded in law as participes criminis their evidence must, none the less, because of the nature of the offence be approached with caution and the Court must duly warn itself about the danger of acting on the uncorroborated evidence of the complainants. This is a warning that we 183 A. Loizou J. Fourri &Others v. Republic

(1980)have duly administered to ourselves and had it in mind throughout the case in evaluating the evidence of the complainants. (SeeZachariav. TheRepublic

(1962)C.L.R. 52—Georghios Peristianis v. The Police

(1969)2 C.L.R. 137). What may afford corroboration was discussed in detail in the case of Lazaris Demetriouv. The Republic,1961 C.L.R. 309. Two recent decisions of the House of Lords have done much to clarify the position as to what may, in a given case, constitute corroboration. In both cases it 10 is emphasized that the object of the exercise is to ascertain the truth and that the Court should not allow itself to be bogged down by formulae and must at all times strive to make a realistic assessment of the evidence, the question being whether corroborative evidence tends to confirm 15 that a crime has been committed and that the accused is the culprit (see D.P.P. v. Kilbourne [1973] 1All E.R. 440 and D.P.P. v. Hester [1972] 3 All E.R. 1056). In this case what must be corroborated is the evidence ofthecomplainants that sodomyhad beencommitted upon 20 them. It is the sexual element of the offence that requires corroboration. Ofcoursebefore any questionfor corroboration arises the evidence of the complainants must be sufficiently credible to enable the Court to act on it lacking only in the degree of certainty required in a criminal case 25 whereupon corroborative evidence, if forthcoming, fills the gap. In the first place the Court must decide whether it is prepared to act on the uncorroborated evidence of the complainants. And inthis casehavingcarefully considered every aspect of the case we are prepared to act on 30 the uncorroborated evidence of the complainants. And in this case having carefully considered every aspect of the case we are prepared to act on the evidence of the complainants even in the absence of corroboration. But even if we were to search for corroboration there is ample 35 corroborative evidence before us. In the first place there are the statements of the accused corroborating the complainants that sodomy had been committed and that the accused had committed it. Other evidence in the case also furnishes corroboration such as thefindingof sperma- 40 184 5 2 C.L.R. 5 10 15 Fourri& Othersτ.Republic A.LoizouJ. tozoa on the anus and underpants of the complainants coupled with opportunity, that is the fact that accused were with the complainants at an isolated spot (See R, v. King [1967] 1 All E.R. 379). That accused were with the complainants is supported by the independent evidence of Andreas Kondoyiorghis and Demetrios Theodorou Cosmas (P.W.I andP.W.5), whereas theevidence of VassilisKondo­ yiorghis(P.W.2)as tothehouratwhichhisbrotherreturned home coincides with the hour at which the complainants were found half naked and transported to Ayia Napa by Alexandras Antoniou (P.W.6). Further, the recovery of the belongings of the complainants from the possession of accused 2 is added evidence in the chain of evidence establishing corroboration in law of the testimony of the complainants'*. Ifully agree with thelegal approachof the Courtand Iadopt its reasoning. Having found that the appellants were correctly held to have acted in concert and aided and abetted each other of the commission of the offences of robbery and sodomy, the 20 question of the identification as to which of the three actually committed the act of sodomy on each of the two complainants is unnecessary. I need not repeat here the sordid details as to theconductofeachoneof thethreeappellants at thetime. The issue that the two complainants consented to the commission 25 ofsodomy meritsnothingbutsummarydismissalandthereasons for it are apparent in the evidence as accepted by the Assize Court. For all the above reasons the appeals of the three appellants against their conviction on the counts they have been found 30 guilty are dismissed. It remains now to consider their appeal against the sentences imposed on them by the Assize Court referred to at the outset of this judgment. It has been argued that these sentences were manifestly 35 excessive in view of the state of mind in which the appellants were at the material time, their age, their past clean record and theirexcellent social investigation report. Ihave givendue consideration to the arguments advanced on this ground. No 185 A. Loizou J. Fourri & Others \. Republic

(1980)doubt the Assize Court took allthese factors into consideration in meeting out the sentences it did. From the record of the Court it transpires that it directed itself properly both astothe nature of the offences and the personal circumstances of the threeoffenders. Itwasindeedabeastlyconduct whichoffended 5 human dignityandassaidbyit,itmarred thecivilization ofour country; and by its sentence the Assize Court rightly made it clear that such conduct which fortunately was unprecedented in the annuls of our history could not be tolerated. None the less they took into consideration the good character of the 10 appellants and for the robbery which carries life imprisonment and the charge of sodomy which carries 14years imprisonment theyimposedsixyearsimprisonment onthemandonthe offences for stealingfrom thepersonpunishable withfiveyearsimprisonment they imposed imprisonment for two years, sentences to 15 run concurrently. Ifindthat there wasnothing manifestly excessive about these sentences,nor there hasbeen anything wrong inprinciple soas to justify an interference of this Court with the exercise of a function which in the first instance is entrusted to the trial 20 Courts to perform. TRIANTAFYLLIDESP.: Iam,generally, inagreement withmy brother Judge Mr. Justice A. Loizou that these appeals should be dismissed. I wish, however, to deal, in this judgment, with two specific 25 aspects ofthecase,namelythefact that appellants 1 and2were not defended by counsel at their trial before the Assize Court in Larnaca which convicted andsentenced them,andthematter of the sentences which were passed upon theappellants. As regards the first of theaforesaid matters the salient facts 30 are, briefly, as follows: The appellants were committed for trial on May 24,1978, and their trial started on June 5, 1978. Atthe commencement of the trial there appeared defending counsel for appellant 3, but appellants 1and 2, whohad been defended by counsel at 35 the committal stage, appeared in person and stated thatdue 186 2 C.L.R. Fourri & Others v. Republic Triantafyllides P. to lack of financial means they could not appoint counsel to defend them. The trial Court decided to assign an advocate to defend at public expense appellants 1 and 2, pursuant to the provisions 5 ofsection 64

(1)ofthe Criminal Procedure Law,Cap. 155, which reads as follows: 10 15 "64.

(1)The Court, before which an accused is to be tried uponachargeorinformation oronthehearingofan appeal from ajudgment ofanAssizeCourt,mayassignanadvocate to defend the accused or the appellant, as the case maybe, if the gravity, difficulty or other circumstances of the case make it desirable in.the interests ofjustice; and the Court shall assign an advocate to defend any undefended person to be tried for an offence punishable with death." Appellants 1and 2 then named six advocates so that one of them could be assigned by the Court to defend them;fiveof them were contacted but none accepted to do so, and the sixth happened to be abroad at the time. Thetrial Court proceeded then to assign as defending counsel 20 ofappellants 1 and2Mr.G. Nicolaides,whoisoneofthesenior and most experienced advocates in Larnaca, but the appellants did not accept him and, so, he did not appear for them. The trial Court decided, in the circumstances, to proceed to hear the case with appellants 1and 2 appearing in person and 25 without having the benefit of the services of defending counsel; in doing so the trial Court stated expressly that it would take care to see that appellants 1 and 2 would not be prejudiced because they were not defended by counsel; and, actually, in delivering judgment the trial Court stressed that throughout 30 the trial it wasfully conscious of its duty to ensurethat the fact that appellants 1 and 2werenot represented by counsel did not operate unfairly against them. It has been contended on behalf of appellants 1and 2 that there has occurred a contravention of paragraph 5(c) of Article 35 12 of the Constitution, which reads as follows: 187 Triantafyllides P. Fourri & Others τ. Republic

(1980)"5. Every personchargedwithanoffence hasthefollowing minimun rights:(c) to defend himself in person or through a lawyer of his own choosing or, if he has no sufficient means to pay for legalassistance, tobegivenfree legalassistance when the interests of justice so require; 5 The above constitutional provision is substantially the same as Article 6

(3)(

1. c)of the European Convention on Human Rights which has been ratified by Cyprus (see the European 10 Convention on Human Rights (Ratification) Law, 1962— Law 39/62) and which, consequently, forms part of the Law of Cyprus. In applying our own Article 12.5(
2. c)it is, therefore, useful tohaveinmindhowArticle 6

(3)(c)of thesaidConvention has been applied. 15 In X. v. Austria (Application No.2676/65, 23 Coll. of Deci­ sions, p. 31, at p. 35) the European Commission of Human Rights decided that Article 6

(3)(c)of the EuropeanConvention on Human Rights "guarantees to an accused person that the proceedings against himwillnottake place withoutanadequate 20 representation of the case for the defence, but does not give an accused person the right to decide himself in what manner his defence should be assured"; and the above viewwas reaffir­ medin X. v. Norway (Application No. 5923/72, 3Decisionsand Reports,p.43,at p. 44)andinX. v. TheUnitedKingdom (Appli- 25 cation No. 8295/78, 15Decisionsand Reports,p.242,at p.244). In Ensslinand others v. The FederalRepublic of Germany (Applications Nos.7572/76, 7586/76, and 7587/76, 14Decisions and Reports, p. 64, at p. 115) the Commission observed that "UnderArticle 6

(3)(c),acriminaltrialmaynottakeplacewithout 30 the defence having the opportunity to present its arguments adequately In both the English and French versions, the Convention clearly defines the right guaranteed by this provision as an alternative between two arrangements designed to ensure that both sides of the case are heard." 35 1S8 2C.L.R. Fourri & Othersv.Republic Triantafyllides P. In the decision of the Commission in X. v. Norway (Application No. 5923/72, supra)the following are stated (at p. 44): 5 "The decision as to whichof thetwoalternatives mentioned in the provision should be chosen, namely the applicant's right to defend himself in person or to be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the Court, depends upon the applicable legislation or rules of Court." In X. v. The Federal Republic of Germany (Application No. 10 646/59, 3 Yearbook, p. 272, at pp. 276-278) it was held by the Commission "that Article 6, paragraph

(3)(c) of -the Convention does not guarantee to an individual legal assistance of his own choosing except in cases where the fees are to be paid by the individual himself." 15 In X. v. Austria (Application No. 4338/69, 36 Coll. of Decisions, p. 79, at p. 82) it was pointed out by the Commission in relation to Article 6

(3)(c) that "it results from this text that the Convention secures the right for an accused person freely to choose a lawyer only in cases where he has sufficient means 20 to pay the lawyer and that, otherwise, the right of the accused is limited to the grant of free legal aid if the interests of justice so require". In X. v. The Federal Republic of Germany (Application No. 6946/75, 6 Decisions and Reports, p. 114, at pp. 116-117) 25 it was held by the Commission that "according to the Commission's case-law Article 6

(3)(c) does not guarantee the right to choose an official defence counsel who isappointed bythe Court , nor does it guarantee a right to be consulted with regard to the choise of an official defence counsel " 30 It is observed, however, by Fawcett in his textbook "The Application of the European Convention on Human Rights", 1969, p. 172, that "while the avocat d' office need not be known to the accused, the principle that he must be one in whom the accused may, inallthecircumstances ofthecase,have confidence '35 seems to be implied in Article 6." It is perhaps useful to point out, at this stage, that free legal 189 Triantafyllides P. Fourri & Others v. Republic

(1980)aid to an accused person may in a proper case be refused altogether without contravening Article 6

(3)(c) of the Convention (see X. v. The United Kingdom, Application No. 5871/72, 1 Decisions and Reports, p. 54, at p. 55). In X. v. Austria (Application No. 2645/65, 11 Yearbook, 5 p. 322, at p. 348) it was stated by the Commission that in considering whether the right under Article 6

(3)(c) has been observed "account must be taken of the treatment of the defence as a whole rather than theposition of the accused taken in isolation"; and, in this respect, particular regard must be had for "the 10 principle of equality of arms as included in the concept of a fair hearing (see, X. v. Norway, Application No. 5923/72,supra). This approach has been reaffirmed in X. v. The UnitedKingdom (Application No. 8295/78, supra). Before concluding the review of relevant case-law of the 15 European Commission of Human Rights reference must be made to the case of Artico v. Italy (Application No. 6694/74,8 Decisions and Reports, p. 73). In declaring the Artico case admissible the Commission stated the following (at p. 89): "The applicant also complains that he was not assisted 20 by a lawyer during the proceedings before the Court of Cassation for the consideration of his appeals, dismissed on 12November 1973, despitethefact that hehad previously been granted legal aid by the same Court. He alleges that Article 6

(3)(c), was violated thereby. 25 The Commission therefore has to decide whether the interests ofjustice did not make it imperative for thejudicial authorities to do everything to ensure that the applicant was assisted by defence counsel, having regard to the legal questions raised by his appeals, particularly with reference 30 to the expunging of the offences by limitation." After having examined the merits of the Artico case, supra, the Commission held (see its Report dated March 8, 1979) that there had taken place a breach of Article 6

(3)(

1. c)and this view was confirmed by the European Court of Human Rights 35 (see its Judgment dated May 13, 1980), the Court stated, inter alia, the following in the Artico case: 190 2 C.L.R. Fourri & Others v. Republic Triantafyllides P. 10 "32. Paragraph 3 of Article 6 contains an enumeration of specific applications of the general principle stated in paragraph 1 of the Article. The various rights of which a non-exhaustive list appears in paragraph 3reflect certain oftheaspectsofthenotion ofafair trial incriminalproceedings (see paragraph 87 of the Commission's report; Deweer judgment of 27 February 1980, Series A no. 35, p. 30, 56). When compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten nor must it be severed from its roots. 15 33. As the Commission observed in paragraphs 87 to 89 of its report, sub-paragraph (
2. c)guarantees the right toanadequatedefence eitherinpersonorthrough alawyer, this right being reinforced by an obligation on the part of the State to provide free legal assistance in certain cases. 5 20 25 30 The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society of the right to a fair trial, from which they derive (see the Airey judgment of 9 October 1979,Series A no. 32,pp. 12-13, 24,and paragraph 32above). Asthe Commission's Delegates correctly emphasised, Article 6 3(
3. c)speaks of 'assistance' and not of 'nomination'. Again, mere nomination does not ensure effective assistance since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties. If they are notified of the situation, the authorities must either replacehim or cause him tofulfil his obligations " In the present instance I am of the opinion that the developments which led to appellants 1and 2 defending themselves at their trial in person, and not through counsel, did not result in any breach of Article 12.5(
4. c)of the Constitution or of Article 35 6

(3)(

1. c)of the European Convention on Human Rights. Though these two appellants had no right to choose the advocate who would be assigned to them, by way of free legal aid, by thetrial Court, under Article 12.5(
2. c)of the Constitution 191 Triantafyllides P. Fourri & Others v. Republic

(1980)and section 64 of Cap. 155, nevertheless the trial Court, in following an established practice, contacted those advocates who had been named by the appellants as counsel of their choice, but it did not prove to be feasible to nominate anyone ofthem,asfiveofthem refused theassignmentandtheotherwas 5 abroad; and appellants 1 and 2 did not accept the advocate whom the trial Court itself nominated to defend them and who accepted to do so; consequently the two appellants were tried without' being defended by counsel. I would like to observe that perhaps a better course than the 10 one adopted, as aforesaid, by the trial Court, would have been for the trial Court to have remained uninfluenced by the refusal of the appellants to accept the defending counsel who was nominated by it and to have assigned him to appellants 1and 2, evenwithout their consent. In any case,looking atthe situa- 15 tion ofthedefence asawholeand bearing inmind, too,that the trial Court wasall along awareof the need to pay particular attention so that appellants 1 and2wouldnotbeprejudicedbythe fact that theywere not representedbycounsel at their trial,Iam of theopinionthat,intheparticular circumstances ofthepresent 20 case, it cannot be said that the said appellants did not have a fair trial or that there has taken place either a breach ofArticle 12.5(c)

(3)(c)of the Convention or any miscarriage of justice. Theothermatter withwhichIproposetodealinthisjudgment 25 is the question of the sentences which were passed upon the appellants, namely concurrent sentences of six years' imprisonment for robbery and sodomy with violence, and of two years' imprisonment for theft from the person of another. The maximum sentence provided by law for robbery is life 30 imprisonment, for sodomy with violence fourteen years* imprisonment and for theft from the person of another five years' imprisonment. It is correct that all appellants are young persons, between nineteen and twenty-two years old; and they allhaveclean past 35 records. In this connection I have borne duly in mind the need for a lenient approach to be adopted by our Courts in relation to 192 2 CX.R. Fourri & Others τ. Republic Triantafyllides P. young persons, especially if they are first offenders (see, inter alia, Meytanis v. The Police,

(1966)2 C.L.R. 84, 85, Mina v. The Police,

(1971)2 C.L.R. 167, 170, and Mavros v. ThePolice,

(1975)2 C.L.R. 171, 180). 5 It is, also, correct that sentences have, as far as possible, to be individualized, even in cases of serious offences (see, inter alia, the Mina and Mavros cases supra). Furthermore, I have paid due regard to the contents of the social investigation reports regarding all the appellants which 10 were pioduced at the trial and which show that the appellants are persons who have repented for what they have done and who ate likely to leform and become, once again, good citizens. But, notwithstanding all the above, I am still not persuaded that the sentences imposed in the present case are wrong in 15 principle or manifestly excessive, because the conduct of the appellants was, indeed, most condemnable and utterly disgusting and it had to be punished in a manner which would abundantly show that conduct of this nature cannot be tolerated in our country. 20 25 30 It might perhaps be said that the sentences which were passed on the appellants, though they were amply warranted in the circumstances of this case, are rather severe, in view of the young age, clean past records and other personal circumstances of the appellants; but this is not a consideration entitling this Court to interfere with such sentences, once it has not been shown to the satisfaction of the Court that they are either wrong in principle or manifestly excessive. Their possible reduction at an appropriate time in future is a question of executive clemency to be dealt with in the exercise of the powers under Article 53 of the Constitution. Lastly, before concluding, I would like to observe that, in agreeing that the appeals of the appellants against the sentences imposed on them should be dismissed, I have not lost sight of the fact that all three appellants were under the influence of 35 drink while they committed the offences in question; but drun­ kenness, except in cases of alcoholism, cannot be accepted by •itself as a strong mitigating factor (see, inter alia, Thomas on Principles of Sentencing, 2nd ed., pp. 209-220). 193 Fourri & Others v. Republic

(1980)MALACHTOS J.: I also agree that the appeals should be dismissedbothasagainst conviction and sentencefor thereasons given in the judgment just delivered by my brother Judge A. Loizou, which judgment Ihad the advantage to read inadvance and I have nothing useful to add. TRIANTAFYLLIDESP.: 5 Intheresulttheseappealsaredismissed unanimously. Appeals dismissed. 194