clr/1981/1981_2_155.pdf

(6)of the Criminal Procedure Law, Cap. 155 cannot be applied—But a proper casefor a new trial—Section I45(\)(d) of Cap. 155. Criminal Procedure—Appeal—Substantial miscarriage of justice— Principles applicable—Provisoto section 145

(6)of the Criminal Procedure Law, Cap.

1. 15 20 25 Criminal Procedure—Appeal-—New trial—Section the Criminal Procedure Law, Cap.
2. \45(\)(d) of At about 10 a.m. on August 5, 1979, the appellant was navigating a speed-boat just outside the limits of the protected for swimmers area of the sea in front of the Nautical Club of Limassol. As he was steering the speed-boat round a buoy he fell oif the boat which, while being completely out of control, entered the aforementioned protected area where it wounded fatally a young girl and, also, very seriously a young boy who, at the time, were both in the sea, very near the shore. He was charged of the offence of causing death by want of precau155 Georghiades >. Police

(1981)tion, contrary to section 210* of the Criminal Code, Cap. 154 and of the offence of navigating a vessel in a manner so rash or negligent as to cause harm to a boy, contrary to section 236(b)** of the Code. The trial Judge acquitted the appellant of the offence of 5 causing death having found that it had not been shown to his satisfaction thathewasguiltyofnegligenceofthedegreerequired for the commission of the offence contrary to the said section 210. The appellant was, however, found guilty of the offence under section 236(b); and though the trial Judge did not say 10 so expressly it was obvious that hewas of the view that a lesser degree of negligence than that required for the purposes of section 210 was sufficient to establish guilt in respect of section 236(b). Uponappeal against conviction: Held, that the same degree of negligence is required both in respect of the offence under section 210 and of the offence under section 236(b) (see Rayas v. The Police, 19 C.L.R. 308 at p. 312); that, therefore, the appellant was found guilty of the offence under section 236(b) due to an error of the trial 20 Judge as regards the degree of negligence required to establish thecommission of the offence underthesaidsection;accordingly the conviction of the appellant on the relevant count must be set aside. Held, further

(1)that, notwithstanding the above error of 25 law, this appeal cannot be dismissed on the ground that no substantial miscarriage of justice has actually occurred, by applying, in this connection, the proviso to section I45(l)(

1. b)of the Criminal Procedure Law, Cap. 155,because, in the light * Section 210 runs as follows: "210. Any person who bywant of precaution or byany rash or careless act, not amounting to culpable negligence, unintentionally causes the death of another person is guilty of a misdemeanour and is liable to imprisonment for two years, or to a fine not exceeding three hundred pounds". ·* Section 236(
2. b)runs as follows: "236. Any person who in a manner sorash or negligent as to tndanger human life or to be likely to cause harm to any other person— (
3. a)(
4. b)navigates, or takes part in the navigation or working of, any vessel; is guuty of a misdemeanour". 156 15 2 C.I .Κ. Georghiades v. Police of the properapplicationof suchproviso, this was nottheproper course in the present instance (see, inter alia, Vouniotis v. The Republic

(1975)2 C.L.R. 34). 5 10

(2)That,in thelight of therelevant principlesgoverning retrial (see, inter alia, Pierides v. The Republic

(1971)2 C.L.R. 263) this was not a case in which to simply acquit and discharge the appellant as regards the offence under section 236(

1. b)of Cap. 154, but that it was necessary, in the interests of justice, to order, under section 145(l)(
2. d)of Cap. 155, a retrial of the appellant, before necessarily another Judge of the District Court of Limassol, in relation to the count charging him with the offence under section 236(
3. b)of Cap. 154. Appeal allowed. Retrial ordered. 15 Cases referred t o : McLeod v. The Police

(1973)2 C.L.R. 63 at p. 66; Andrews v. Director of Public Prosecutions [1937] 2 All E.R. 552 at p. 556; R. v. Lowe [1973] 1 All E.R. 805 at p. 808; 20 R. v. Stone [1977] 2 All E.R. 341 at p. 347; 7?. v. Sheppard [1980] 1 All E.R. 899 at p. 904; Rayas v. The Police, 19 C.L.R. 308 at p. 312; Vouniotis v. The Republic

(1975)2 C.L.R. 34; Khadar v. The Republic

(1978)2 C.L.R. 132; 25 .Zisimides v. The Republic

(1978)2 C.L.R. 382; Pierides v. The Republic

(1971)2 C.L.R. 263; Anastassiades v. The Republic

(1977)2 C.L.R. 97; Kouppis v. The Republic

(1977)2 C.L.R. 361; 30 Au Pui—Kuen v. Attorney-General of Hong Kong [1979] 1 AH E.R. 769; Reid v. The Queen [1979] 2 All E.R. 904. Appeal against conviction. 35 Appeal against conviction by Agis Georghiou Georghiades who was convicted on the 20th September, 1980 at the District Court of Limassol (Criminal Case N o . 16551/79) on one count 157 Georghiades τ. Police

(1981)of theoffence ofnavigating avesselinarashornegligentmanner, contrary to section 236(

1. b)of the Criminal Code Cap.. 154 and on one count of the offence of failing to furnish particulars of the vessel for record purposes contrary to regulations 4 and 15 of the Emergency Powers (Control of Small Vessels) Regulations, 1955 and was sentenced by Korfiotis, D.J. to pay £50.-fineon thefirstcountand £3.-fineonthe second count. 5 Y. Agapiouwith P. Pavlou, for the appellant. A. M. Angelides, Senior Counsel of the Republic, for the respondents. Cur. adv.vult. TRIANTAFYLLIDES P. readthefollowingjudgment of theCourt. Theappellant was convicted, by the District Court of Limassol, on September 20, 1980, of the offence of navigating, on August 5, 1979, a vessel in a manner so rash or negligent as to cause 15 harm to a nine and a half years old boy, contrary to section 236(
2. b)of the Criminal Code, Cap. 154, and was sentenced to pay a fine of C£50plus C£70costs. Hewas, at the sametime, sentenced topay afineof C£3inrespect of theoffence of failing to furnish particulars of the said vessel for record purposes, 20 contrary to regulations 4 and 13 of the Emergency Powers (Control of Small Vessels) Regulations, 1955. On the other hand, he was acquitted of the offence of having caused, at the same time and place, the death of a seven and a half years old girl by want of precaution not amounting to 25 culpable negligence, contrary to section 210 of Cap. 154. The salient facts of this case, as they appear from the judgment of the trial Court, are as follows:At about 10 a.m. on August 5, 1979, the appellant was navi­ gating a speed-boat just outside the limits of the protected 30 for swimmers area of the sea in front of the Nautical Club of Limassol. As he was steering the speed-boat round a buoy hefell off the boat which,while being completely outof control, entered the aforementioned protected area where it wounded fatally a young girl and, also, very seriously a young boy who, 35 at the time, were both in the sea, very near the shore. The trial Judge, in acquitting the appellant as regards the charge relatedto thedeath of the girl,found that,in thecircum158 10 \ I I 1 2 C.L.R. Georghiades v. Police Triantafyllides P. stances of this case, as they had been established by the evidence adduced before him, it had not been shown to his satisfaction that the appellant was guilty of negligence of the degree required for the commission of the offence contrary to section 210 of 5 Cap. 154, which reads as follows: 10 "210. Any person who by want of precaution or by any rash or careless act, not amounting to culpable negligence, unintentionally causes the death of another person is guilty of a misdemeanour and is liable to imprisonment for two years, or to a fine not exceeding three hundred pounds". The trialJudge referred, in relation tothe mode of the application of section 210, above, to McLeod v. The Police,

(1973)2 C.L.R. 63, 66, where there was followed, in relation to the 15 question of the required degree of negligence, the approach which was adopted by Lord Atkin in Andrews v. Director of Public Prosecutions, [1937] 2 All E.R. 552, 556. The said approach was followed, too,in, interalia,R. v. Lowe, [1973] 1All E.R. 805, 808, R. v. Stone, [1977] 2 All E.R. 341, 20 347and R. v. Sheppard,[1980] 1 All E.R. 899,904and had, also, been relied on earlier in Rayas v. The Police, 19 C.L.R. 308. • Having acquitted the appellant on the count regarding the offence contrary to section 210 of Cap. 154, the trial Judge proceeded tofindthe appellant guilty ofthe offence under section 25 236(

1. b)of Cap. 154, which reads as follows: "236. Any person who in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person— (
2. a)30 (
3. b)navigates, or takes part in the navigation or working of, any vessel; is guilty of a misdemeanour". Though the trial Judge did not say so expressly, it is obvious that he was of the view that a lesser degree of negligence than that required for the purposes of section 210, above, was suffi35 cient to establish guilt in respect of section 236(b). 159 Triantafyllides P. Georghiades v. Police FromtheRayascase,supra(atp.312),itappearsthatthesame degree of negligence is required both in respect of the offence undersection210(atthattimethepresentsection210wassection 204 of the Criminal Code, Cap. 13,in the 1949Edition of the Statute Lawsof Cyprus) and of the offence undersection 236(
4. b)(at that time the present section 236(
5. b)was section 230(
6. b)of the said Cap. 13).

(1981)5 We are inclined to agree with the above view which, as a matter of fact, has been shared without reservation by learned counsel appearing before us for both sides in the present case. 10 It follows, in the light of the foregoing, that the appellant wasfound guilty of the offence under section 236(

1. b)due to an error of the trial Judge as regards the degree of negligence required to establish the commission of the offence under the said section and, therefore, the conviction of the appellant on 15 the relevant count has to beset aside, together, of course, with the sentence of C£50 which was passed upon him in relation thereto, and, also, the order that he should pay the amount of C£70 as costs of the trial. We have examined, before reaching the above conclusion, 20 whether, notwithstanding the aforementioned error of law of the trial Judge, we could have dismissed this appeal on the ground that no substantial miscarriage of justice has actually occurred, by applying, inthisconnection, the proviso to section 145(l)(
2. b)of the Criminal Procedure Law, Cap. 155;weformed 25 the view,however, in the light ofthe proper application of such proviso, as explained in, interalia, Vouniotis v. The Republic,

(1975)2 C.L.R. 34, Khadar v. The Republic,

(1978)2 C.L.R. 132 and Zisimidesv. The Republic,

(1978)2 C.L.R. 382, that this was not the proper course in the present instance. 30 Onthe other hand, weare of the opinion, in the light of the relevant principles which have been expounded in, interalia, Pieridesv. The Republic,

(1971)2 C.L.R. 263, Anastassiades v. TheRepublic,

(1977)2C.L.R. 97andKouppisv.TheRepublic,

(1977)2 C.L.R. 361, as well as in Au Pui-Kuen v. Attorney- 35 General of HongKong,[1979] 1 All E.R. 769 and Reid v. The Queen, [1979]2All E.R. 904,that thisisnot a caseinwhich we should simply acquit and discharge the appellant as regards theoffence under section236(b)of Cap. 154,butthat itisneces160 2 C.L.R. Georghiades τ. Police Triantafyllides P. sary, in the interests of justice, that we should order, under section 145(l)(

1. d)of Cap. 155,a retrial of the appellant,before necessarily another Judge of the District Court of Limassol, in relation to thecount charging him with the offence under 5 section 236(
2. b)of Cap. 154. In the result this appeal is allowed accordingly. Appeal allowed. Retrial ordered. 161