clr/1982/1982_2_99.pdf

(1982)had withdrawn from his own paity but he denied that he erased his name from the Notification. The appellant was prosecuted of the offence of corrupt practice, contrary to sections 2 and 42(l)(d)*.of the Election of the Members of the House of Representatives Law, 1979 (Law 5 72/79), the particulars of which were that he made a false state­ ment of the withdrawal of the candidate Mr. Chiistoforos Christofides for the purpose of promoting the election of another candidate. The trial Judge accepted as true the evidence of the Officer in charge of the Election Centre and rejected the 10 above denial of the appellant in his statement to the Police; and found that the required element of mens rea had been established by the prosecution, that the act of the appellant amounted to the offence of making a false declaration within the meaning of the Law. 15 Upon appeal against conviction counsel for the appellant mainly argued that the trial Judge did not direct his mind to the principle that mens rea was required in the sense that the said statement was false to the knowledge of the appellant, having made no finding that the appellant knew that the state- 20 ment was false. Held, that mens rea is an element of the offence created by section 42(l)(

1. d)of Law 72/1979 and it is required regarding the offence as a whole including "knowledge" of the falsity of the statement made or published; that the trial Judge has 25 not misdirected himself on the issue of mens rea regarding the requirement of "knowledge" of the falsity of the statement published as being an ingredient of the offence; that the whole tenor of his judgment shows that the guilty knowledge of the appellant about the falsity of the statement had been established 30 by the evidence adduced and that there was no need for elabora­ tion on this issue; accordingly the appeal should be dismissed. Appeal dismissed. Cases referred to: Brend \. Wood [i946J 175 Law Times 306; Warner v. Metropolitan Commissioner [1968] Cr. App. R. 373; Sweet v. Parsley [1969] 53 Cr. App. R. 221; * Section 42{l)(d> is quoted at p. 104 post. 100 35 2 C.L.R. Hailis v. Police Tesco Supermarkets Ltd. v. Nattrass [1971] 2 All E.R. 127; Urn Chin Aik v. The Queen [1963] A.C. 160; Sherrasv. De Rtttzen [1895] 1 Q.B. 918. ' Appeal against conviction. —— 5 Appeal against conviction by Costas Michael Hailis who was convicted on the 4th November, 1981 at the District Court of Larnaca (Criminal Case No. 3218/81) on one count of the offence of corrupt practice contrary to sections 2 and 42(l)(
2. d)of the Election of the Members of the House of Representatives 10 Law, 1979(Law No. 72of 1979) and wasbound over by Eliades D.J. in the sum of £200.—for 2years to keep the Law and Regulations. A. Poetis, for the appellant. A.M. Angelides, Counsel of the Republic, for the respon15 dents. _- — - A. Loizou J. gave thefollowing judgment of the Court. The appellant was found guilty of the offence of corrupt practice contrary to sections- 2 and 42(l)(
3. d)of the Election of the Members of the House of Representatives Law, 1979, (Law 20 No. 72 of 1979) (hereinafter to be referred to as the "Law"). The particulars of the offence were that on the 24th May, 1981, at Mazotos in the District of Larnaca during the election of members of the House of Representatives he made a false statement of the withdrawal of the candidate Mr. Christoforos 25 Christophides for the purpose of promoting the election of another candidate. The ground upon which this appeal has been argued is that the learned trial Judge did not direct his mind to the principle that mens rea was required in the sense that the said statement 30 was false to the knowledge of the appellant, having made no finding that the appellant knew that the statement was false. The facts of the case as accepted by the learned trial Judge are as follows:At about 8.30 in the morning of the 24th May, 1981, as a 35 result of information received, Spyros Charalambides, the Officer in Charge of the Election Centre at Mazotos village came out into the yard of the election centre, noticed a commotion and instinctively he turned to the Official Notification indicating 101 A. Loizou J. Hailis τ. Police the names of all thecandidates and saw that the name of Christophides hadtwo lines drawnacross it. Heasked theappellant as to who had done it and the appellant replied to him that he erased it because they hadheard that hehad stopped, obviously another way of saying that he had withdrawn his candidature.

(1982)5 Theappellant whoinfact was therepresentative of the Demo­ craticParty at Mazotos,placed a small table outside theelection centre, in order to assist thevoters who were going to vote for his party. In his statement to the Police, which he gave soon after the aforesaid incident, he said that he had heard from 10 various persons, who were talking in the yard of the Centre that Mr. Christofides had withdrawn from his own party but denied that he erased the name of the said candidate from the Notification and he did not know who had done it. However, the learned trial Judge accepted as truetheevidence 15 of Spyros Charalambides and rejected the subsequent denial of the appellant, contained in his statement to the Police. On the evidence before him the learned trial Judge found that the required element of mens rea had been established by the prosecution, that the act of the appellant amounted to the 20 offence of making a false declaration within the meaning of the Law and found him guilty of the charge preferred against him. In arriving at this conclusion and after dealing with theprin­ ciples of Law governing the question of intent and mens rea in criminal offences with which we shall be shortly dealing, he 25 also bore in mind that thewithdrawal of a candidatecould only be effected undersection23of theLaw by thefilingof a written notice by the candidate to the person in charge of the elections and that the Notification at Mazotos village was the official documentindicating thenamesof thecandidates andany unlaw- 30 ful interference with its contents could change the mind and possibly the behaviour of voters in the village who were going to cast their votes. As stated by Lord Goddard in Brendv. Wood [1946] 175, Law Times 306: "It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that, unless a statute, either clearly or by necessary 102 35 2 C.L.R. Hailis v. Police A. Lofzou J. implication, rules out mens rea as a constituent part of a crime, the Courtshould notfinda manguilty of an offence against the criminal'law unless he has a guilty mind". At Common Law mens rea was regarded as an essential element of every crime (Warner v. Metropolitan PoliceCommis­ sioner [1968] 52 Cr. Αρ. Rep. 373) and there does not appear to be a case in which the legislature has dispensed with the need for mens rea when giving a statutory form to a Common Law crime. There are, however, statutory offences where for a 10 number of reasons persons can be found guilty whether or not there exists mens rea for such particular offence being sufficient only the actus reus which constitutes it, the belief, intention or state of mind of the culprit being immaterial and irrelevant. Suchoffences are known as offences of strict or absolute liability. 15 They usually arise under regulatory legislation and it is in exceptional circumstancesthatserious offences of atruly criminal nature are found to have been committed in spite of the absence of mens rea. 5 An extensive examination of the subject is to be found in 20 the case of Warner v. Metropolitan Police Commissioner (supra) by the House of Lords and in the cases of Sweet v. Parsley [1969] 53 Cr. App. Rep. 221 and Tesco Supermarkets Ltd. v. Nattrass [1971] 2 All E.R. 127, where the liability of employers for the acts of their servants and the difficulties that arise in 25 relation thereto are examined. 30 35 Invariably these offences of strict liability are created on account of the fact that the burden of proof of mens rea which is upon the prosecution is often a difficult and onerous one (see Tesco (supra) ), whereas proof of the actus reus is easier and is discharged by calling witnesses as to the facts of the case. Given, however, the proper circumstances, Courts hold from time to time that the legislature intended to rule out mens rea as an element of an offence {Sweet & Parsley (supra) ). Both, the Privy Council in Lim Chin Aik [1963] Appeal Cases 160, and the House of Lords in Warner's case (supra) have expressly approved what has come to be known as the locus classicus on the subject which can be found in the judgment of Wright J. in Sherras v. De Rutzen [1895] 1 Q.B. 918: "There is a presumption that mens rea 103 is an essential A. Loizou J. Hailis v. Police

(1982)ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered". In deciding as to whether an offence of strict liability or not 5 has been created by a statute, the actual words of the relevant section have in the first place to be examined. If there is no clear intention, then and only then, Courts will proceed to examine all relevant circumstances in order to decide whether the legislature intended to create an offence of strict liability. 10 Wright J. in Sherras case (supra) referred to the presumption of mens rea and that itcould bedisplaced by "the subject matter of the enactment". We do not intend to proceed any further on this subject, except that the words of a particular section may immediately show that there was an intention to create an offence of strict liability or that mens rea was required in some form or other, either regarding the offence as a whole or with regard to some particular part of the actus reus. 15 Section 42

(1)(

1. d)reads as follows: 20 ''Any person who— (
2. d)makes or publishes before or during any election, for the purpose of promoting the election of any candidate, any false statement of the withdrawal of any other candidate at such election; shall be guilty of the criminal offence of corrupt practice, and shall be liable upon conviction, to imprisonment not exceeding six years or to a fine not exceeding C£200.—and the Court trying the case may order the deprivation of voting and of being registered as an elector 30 for a period not exceeding seven years for any election under this law or any other law amending or replacing this law". This section corresponds in its substance to section 91

(4)of the Representation of the People Act of 1949 which reads 35 as follows: 104 25 2 C.L.R. 5 Hailis \. Police A. Loizou J. "Any person who, before or during an election, knowingly publishes a false statement of the withdrawal of a candidate at the election for the purpose of promoting or procuring the election of another candidate shall be guilty of an illegal practice: Provided that a candidate shall not be liable, nor shall his election be avoided, for any illegal practice under this subsection committed by his agent other than his election agent". 10 The fundamental difference is the omission from our own section of the word "knowingly" that precedes the word "publishes" in the English section. But its absence is no indication that the doctrine of mens rea does not apply (see per Lord Reid in Sweet v. Parsley (supra) at p. 225). See also 15 Archbold, Criminal Pleading, Evidence and Practice, 40th Ed., para. 1443(b), where it is, in addition, stated that: 20 25 "There is considerable authority for the view that in the criminal law 'knowledge' includes 'wilfully shutting one's eyes to the truth. See e.g. per Lord Reid in Warner v. D.P.P. [1968] 52 Cr. App. R. 373, H.L., at p. 389; Atwal v. Massey [1971] 56 Cr. App. R. 6, D.C. The tendency of the courts at present however is towards the view that this is a matter of evidence, and that nothing short of actual knowledge will suffice. See R. v. Grainge [1974] 59 Cr. App. R. 3 and R. v. Griffiths [1974] 60 Cr. App. R. 214, explaining Atwal v. Massey, ante, and R. v. Stagg [1978] Crim. L.R. 227". In Halsbury's Laws of England, 4th Ed., Vol. 11,para. 18, the following considerations are given as relevant in determining 30 whether a statutory provision does or does not impose strict liability :- 35 "

(1)the language of the provision creating the offence, and in particular any expression indicating that some mental element is required, although the absence of any such expression does not give rise to a compelling inference that mens rea is excluded;

(2)whether the act iscriminal in the generally accepted sense 105 A. Loizou J. Hailis τ. Police

(1982)or is an act which, in the public interest, is prohibited under a penalty;

(3)thenatureof themischief atwhich theprovision isaimed and whether the imposition of strict liability will tend to suppress the mischief, although strict liability will not be inferred simply because the offence may be described as a grave social evil. Where the elements of the offence will be imposed only where the language of the provision creating the offence is incompatible with any other interpretation". 5 10 The element of mens rea was found to be required also in relation to thecorresponding English provisions. In Halsburfs Statutes of England, 3rd Ed., Vol. 11, with regard to the false statement of fact, mens rea is found to be an element of the offence andina Notetosection91of theaforesaid Act of 1949, 15 at p. 633, it is stated: "If afalsestatementis madeby a personhaving noreason­ able ground for believing it to be true, it is not material for the purposes of this section that the statement is made by way of counter-charge to an original charge or that 20 the candidate affected has in some way by his speech or publication provoked the making of the statement". Also with regard to the "knowledge" and the meaning of the word "knowingly" reference is made to the interpretation of the word "knows" which is also found in section 47 of the Act 25 where the following appears at p. 594: "Thereis authorityfor sayingthat where a person delibera­ tely refrains from making inquiries the results of which he might not care to have, this constitutes in law actual knowledge of the facts in question; see Knox v. Boyd, 30 1941, S.C. (J.) 82, at p. 86, and Taylor's Central Garages {Exeter) Ltd. v. Roper

(1951), 115 J.P.445, at pp.449, 450, per Devlin, J.; and see also, in particular, Mallonv. Allon [1964] 1 Q.B. 385; [1963]3 All E.R. 843, at p. 394 and p. 847, respectively. However, mere neglect to ascertain 35 what would have been found out by making reasonable inquiries is not tantamount to knowledge; see Taylor's Central Garages(Exeter) Ltd. v. Roper, ubi supra, per 106 2 C.L.R. Hailis τ. Police A. Loizou J. Devlin, J.: and cf. London Computator Ltd. v. Seymour [1944] 2 All E.R. 11; but see also Mallonv. Allon,supra". Guided by the aforesaid exposition of the law on thematter we have nodifficulty in concludingthat mens rea is anelement 5 of the offence created by section 42(l)(d) of the law and it is required regarding theoffence asawholeincluding "knowledge" of the falsity of the statement made or published. The fact that the words "knows" or "knowingly" is to be found with regard tootheroffences createdby thesame sectionand omitted 10 here, makes no difference. In the context, however, of this provision the requirement of knowledge of the falsity of the statement includes definitely wilfully shutting one's eyes to the truth or having no reasonable ground for believing to be true or where a person deliberately refrains from making inquiries 15 the results of which he might not care to have and does not necessarily mean proof only of actual knowledge. With these principles in mindwe turnnow to thecase before us and we have no difficulty in holding that the learned trial Judge has not misdirected himself on the issue of mens rea 20 regarding the requirement of "knowledge" of the falsity of the statement published as being an ingredient of theoffence. The whole tenor of his judgment shows that the guilty knowledge of the appellant about the falsity of the statement had been established by theevidence adduced and thattherewas noneed 25 for elaboration on this issue, that is why he examined in more detail thenecessity of mens rearegardingthepurpose for which thatfalsestatement,namely,theerasureof thenameofcandidate Christofides from the notification in question was made. On more than one occasion in his judgment he speaks of 30 such knowledge and in dealing with the element of mens rea in the following passage of his judgment one can clearly see that he directed himself clearly on the matter both as to the burden of proof and as to the necessity that the falsity of the v statementhad presupposed knowledge about it, hencehis refe35 rence to a forged bill knowing it to be forged: "Where mens rea is a necessary ingredient of the offence it must be proved by the prosecution. When the act is unequivocal, the proof that it was done may be evidence of the intention which the nature of the act conveys as 107 A. Loizou J. Hailis v. Police

(1982)for example where a person utters a forged bill knowing— (the underlining is ours)—it to be forged, and meaning that thebillshould betaken asgenuinetheinevitable conclusion is that he intended to defraud (See R. v. Hill

(1838)8 C. and P., p. 274)". Fcr all the above reasons this appeal is dismissed. Appeal dismissed. 108 5