clr/1983/1983_2_391.pdf

(4)of the Law applies to the added count—Article 12

(5)(d) and 30

(6)(c) of the Constitution not contravenedby not allowing witnesses recalled for cross-examination to be crossexamined without any limitation. 391 Rossides τ. Republic

(1983)Criminal Law—Sentence—Homicide^ 15 years' imprisonment— Sustained. On the 17th July, 1974,a groupof gunmen, oneof thembeing the appellant, arrested one Costas Mishiaoulis ("the deceased") at his homeinTseri at night-time;andtook himby cartogether 5 with otherpersonsatthelocality"Kokkines" inthearea ofTseri. The deceased and another person were ordered to descend from the car andwere madeto stand in the road facing a landrover which had its headlights on. One of the gunmen—the appellant—was sitting on the bonnet of the landrover, another 10 gunmanwas standingtotheleft of the landrover and yetanother onewas standing inafield ontheotherside. Thentheappellant toldthedeceased thatthey wanted himto surrender the firearms which he had at his village and when he did not reply the three gunmen fired simultaneously. The appellant fired a burst 15 over the heads of the deceased and of the otherperson, thegun­ man on the left fired a burst next to themand thegunman who was in thefieldfireda burst, too. The deceased was wounded and fell down in the road in a prone position. At the trial of the appellant for the premeditated murder of the deceased the trial Court found that the bursts which were firedfrom a close distance by the appellant and by the gunman to the left of the landrover did not hit the deceased and thai he was hit by ricochetted bullets which were fired by the gunman in the field. 20 25 The trial Court, also, found that the common purpose for which the gunmen took the deceased and other persons to the aforesaid locality—in a Volkswagen car—includedthefollowing elements:(

1. a)To stop at that lonely locality and force down at 30 random a number of the arrested persons from the Volkswagen; (
2. b)To force them stand at such a position in front of the landrover and at such a short distance as to exclude the possibility of any possible escape and the three gunmen to take such positions as by their armed pre­ sence to cause terror to the mind of these persons; (
3. c)At gun point to demand from such persons delivery 392 35 2 C.L.R. Rossides \. Republic to them of arms allegedly in the possession of such persons; 5 10 15 20 25 30 35
4. td)If those persons did not accede to their demand to fire simultaneously towards their direction in order to frighten and terrorize them and thus compel them to deliver any arms they might possess. The trial Court further found that although the death of the victim wasnot in itself the express or ultimate aim of the gunmen when they fired, his death was brought about by the natural, in the circumstances, flow of events which the three gunmen set in motion and persisted it and that the appellant by his armed presence at the scene of the crime signified his approval of, and intentionally encouraged, the unlawful act that caused the death of the deceased. It was, therefore, held thai the appellant was responsible for the homicide of the deceased by virtue of the provisions of section 21 of the Criminal Code, Cap. 154. The count for homicide, in respect of which the appellant was convicted, was added by the trial Court, under section 83 of Cap. 155, at the close of the case for the prosecution, after the appellant had been acquitted in relation to a count charging him with premeditated murder. After the appellant had pleaded guilty to the new added count it was ordered by the trial Court, under section 84

(4)of Cap. 155, that the evidence already given in the course of the trial should be used without being reheard, but the parties were informed that they were allowed to recall or re-summon any witnesses for examination or cross-examination with reference to the new count. Regarding the identification of the appellant the trial Court did not attribute in the present case any significance to his identification only in the dock, but it relied on witnesses who knew him before the fateful night of 17th July 1974,on witnesses who did not know him beforehand but who described him by his appearance and each one of whom came to know, for some reason, the name of the appellant on that night or on the following day, on witnesses who described his appearance and identified him at the identification parade held by the police and, lastly, on witnesses who described his appearance but could not identify him at the said parade; and on the totality of this 393 Rcssides v. Republic

(1983)evidence it reached the conclusion that the appellant was the gunman who was sitting on the bonnet of the landrover at the material"time. Upon appeal against conviction and sentence of 15 years' imprisonment which was imposed on the appellant for the offence of homicide it was contended: 5 (

1. a)That the bullet woundsofthedeceased didnotcontinue to be until the end the operative cause of his death and that his death ensued because the medical treatment which he received was improper and negligent 10 to suchan extent astocause hisdeath,whichwould not have otherwise occurred. In this respect itwasargued that the death of the deceased was in fact caused due to transfusions of blood incompatible with his; or that, to say the least, it could not safely be found, 15 beyond reasonable doubt, what was the exact cause of death in this case. (
2. b)That the appellant wasnot properly identified as being one of the three gunmen involved in the incident at which the deceased was wounded and, particularly, 20 he was not properly identified asthe gunman whowas silting on the bonnet of the landrover. (
3. c)That section 84

(4)of the Criminal Procedure Lav/, Cap. 155,was applied, in the present case, by the trial Court in a manner incompatible with Article I2

(5)(d) 25 and 30

(3)(b)(c) of the Constitution, because when two witnesses were recalled for cross-examination by the defence the trial Court ruled that the expression "with reference to such alteration" in section 84<4), meant "elements of the new offence which were not 30 elements in the original count". Held,

(1)that the findings of the trial Court that the cause of death of the deceased was "acute renal failure and shock with itsconsequences,uremia,oliguria,anuria,duetothemany, extensive and serious injuries of vital vessels and organs of his 35 body caused by gunshots" and that the deceased was treated by the doctors and the other hospital staff in good faith, and, in every respect, with common knowledge and 394 2 C.L.R. Rossldes v. Republic skill, were duly warranted in the circumstances of the present case and that, therefore, the relevant provisions of section 211ofCap. 154cannot beappliedinsucha mannerasto relieve theappellant from hisresponsibilityforthedeathofthedeceased. 5 • 10 15 20 25 30 35 40

(2)After dealingwith the principles governing identification evidence: That the identification of the appellant as one of the gunmen in question was safe beyond any reasonable doubt; that once the appellant was properly identified as one of the gunmen involvedintheincident asaresultofwhichthedeceased lost his life this Court is satisfied, in the light of the correct conclusions of the trial Court as regards the common purpose of the gunmen on that night, and the part that the appellant played in furtherance of such common purpose, that it waswarranted beyondanyreasonabledoubt to find, onaproper application of section 21of Cap. 154tothe facts ofthe present case, the appellant guilty of causing by unlawful acts the death of the deceased.

(3)1hattheapproachtothe meaningand modeofapplication of section 84

(4), which was adopted, as aforesaid, by the trial Court doesnot offend againstArticles 12

(5)(d)and 30

(3)(b)(c) of the Constitution, because it cannot be accepted that when a charge or information in.altered at the close of the case for the prosecution, under section 83 of Cap. 155,then defending counselisentitledtocross-examineafresh withoutanylimitation all the witnesses who have already testified; that the alteration of theinformation bytheaddition of anewcountdidnot render thetrial ofthe appellant from then onwardsa new and separate trial, but there followed, after such alteration, a stage of the trial at which the appellant was entitled to the enjoyment of the rights safeguarded by the aforementioned Articles I2

(5)(

1. d)and 30(2X3)(b)(
2. c)oftheConstitution onlyto theextenttowhich hehadtomakehisdefence onthealteredinformation inrelation to any elements of the added new count for the offence of homicide which had not been elements of the offence of premedilated murderwithwhichhehadbeeninitiallycharged;accordingly the appeal against conviction must be dismissed.

(4)That having in mind the settled principles governing the exercise of the relevant powers of this Court on appeal it has not been persuaded that it would be justified to intervene in favour of the appellant for the purpose of reducing the sentence 395 Rossides \. Republic

(1983)which was passed upon him by the trial Court and. thus, bis appeal against sentence has to be dismissed, too. Observations' with regardto the existenceof elements which meritconsideration bythe competent organs oftheRepublic under Article53.4 of the Constitution witha view to the possibility of 5 remission of sentence at anappropriate timeinthefuture. Appeal dismissed. Cases referred to: R. v. 5>n/7A [1959] 2 All E.R. 193: R. v. Blaue[1975] 3 All E.R. 446; 10 /?. v. Matcherek andR. v. Steel[1981]2 All E.R. 422; R. v. Turnbutl [1976] 3 All E.R. 549 at pp. 551-553; Anastasuades v. Republic

(1977)2 C.L.R. 97 at p.281; Katsiamalii v. Republic

(1980)2 C.L.R. 107at p. 116; R. v. Weeder, 71 Cr. App. R. 228 at p. 231. 15 Appeal against conviction and sentence. Appeal against conviction and sentence by Georghios Yianni Rossideswho wasconvicted on the 23rd May, 1980at the Assize Court of Nicosia (Criminal Case No. 22915/79) on one count of theoffence ofhomicidecontrarytosection 205ofthe Criminal 20 Code, Cap. 154 and was sentenced by Stylianides, P.D.C., Hji Constantinou, S.D.J, and Fr. Nicolaides, D.J. to fifteen years' imprisonment. M. Christopltides, for the appellant. V. Aristodemou, Senior Counsel of the Republic, for the 25 respondents. Cur. adv. vult. TRIANTAFYLLIDESP. read thefollowingjudgment of the Court. The appellant was convicted, by an Assize Court in Nicosia, of the offence of homicide, contrary to section 205 of the 30 Criminal Code, Cap. 154. He was found guilty of having caused, together with other persons, by an unlawful act, the death of Costas Mishiaoulis, late of Tseri, on the 22nd July 1974, at the locality "Kokkines", in the area of the village of Tseri. The appellant was sentenced to fifteen years' imprisonment and he has appealed both against conviction and sentence. The deceased was illegally arrested on the 17th July 1974, 396 35 2 C.L.R. Rossides v. Republic Triantafyllides P. at his home in Tseri, by a group of gunmen and, eventually, he was taken, at night-time, with other persons, to the aforementioned locality where he was wounded when shots were fired by the gunmen. He was then conveyed by them, later 5 on that night, to the Nicosia General Hospital where he died on the 22nd July 1974. It was found by the trial Court that the appellant was one of the gunmen in question and that their common purpose for which they took the deceased and other persons detained by 10 them to the aforesaid locality—in a Volkswagen car ahead of which were proceeding the gunmen in a landrover—included the following elements: 15 "(

1. a)To stop at that lonely locality and force down at random a number of the arrested persons from the Volkswagen; 20 (
2. b)To force them stand at such a position in front of the landrover and at such a short distance as to exclude the possibility of any possible escape and the three gunmen to take such positions as by their armed presence to cause terror to the mind of thesepersons; (
3. c)At gun point to demand from such persons delivery to them of arms allegedly in the possession of such persons; 25 (
4. d)If those persons did not accede to their demand to fire simultaneously towards their direction in order to frighten and terrorize them and thus compel them to deliver any arms they might possess". Accordirg to the evidence of an eyewitness, Georghios Pisiis, which the trial Court found to be reliable, the said witness 30 and the deceased were ordered to descend from the car and were made to stand in the road facing the landrover which Had its headlights on. One of the gunmen was sitting on the bonnet of the landrover—and it was found by the trial Court that he was the appellant—another gunman was standing to 35 the left of the landrover and yet another one was standing in a field on the other side. All three of them were armed with automatic weapons and they had their guns pointed towards the witness and the deceased. Then the appellant told the deceased that they wanted him to surrender the firearms which 397 Triantafyllides P. Rossides v. Republic

(1983)hehadathisvillageand whenhedid not replythethreegunmen fired simultaneously. The appellant fired a burst over the heads of the deceased and of the witness, the gunman on the left fired a burst next to them and the gunman whowas in the fieldfireda burst, too. The deceased was wounded and fell 5 down in the road in a prone position. The trial Court found that the bursts which werefiredfrom a closedistance by the appellant and bythe gunman to the left of the landrover did not hit the deceased and that he was hit by ricochetted bullets which were fired by the gunman in the 10 field. When the gunmen realized that the deceased had been wounded he wasconveyed bythe.nfirstto adoctor at anearby village and from there to the Nicosia Geneial Hospital. The trial Court found that although the death of the victim 15 wasnot initself theexpressorultimateaim ofthegunmenwhen they fired, his death was brought about by the natural, in the circumstances, flow of events which the three gunmen set in motion and persisted it and that the appellant by his armed presence at the scene of the crime signified his approval of, 20 and intentionally encouraged, the unlawful act that caused the death ofthedeceased. Itwas,therefore, held that theappellant was responsible for the homicide of the deceased by virtue of the provisions of section 21 of the Criminal Code, Cap. 154. According to the statement which wasmade bythe appellant 25 from the dock during his trial, the gunman who was standing in the field to the right of the landrover, and who fired the bullets which ricochetted and hit the deceased, is Antonis Antonas, who after the incident in question left for Greece. It appears that it has not been possible to secure his 30 extradition to Cyprus in order to try him for the offence in question. Another person, Sotiris Demetriades, was tried together with the appellant as being allegedly the third gunman, but at the closeof thecasefor theprosecution itwasfound that noprima 35 facie case had been made against him sufficiently to require him to make his defence and he was discharged because the trial Court could not safely conclude that he was present at 398 2 C.L.R. Rossides v. Republic Triantafyllides P. the material time at the locality where the deceased was wounded. It has been contended by counsel for the appellant that the bullet wounds of the deceased did not continue to be until 5 the end the operative cause of his death and that his death ensued because the medical treatment which he received was improper and negligent to such an extent as to cause his death. which would not have otherwise occurred. In this respect it was argued that the death of the deceased was in fact caused 10 due to transfusions of blood incompatible with his; or that. to say the least, it could not safely be found, beyond reasonable doubt, what was the exact cause of death in this case. The relevant provision of our Criminal Code, Cap. 154, is section 211, which reads as follows: 15 20 25 "211. A person is deemed to have caused the death of another person although his act is not the immediate or not the sole cause of death in any of the following cases:(

1. a)if he inflicts bodily injury on another which causes surgical or medical treatment which causes death. In this case it is immaterial "whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill; 30 ' (
2. b)if he inflicts a bodily injury on another which would not have caused death if the injured person submitted toproper surgicalor medicaltreatment or had observed proper precautions as to his mode of living; 35 (
3. c)if by actual violence or threat of violence he causes a person to do some act which causes his own death, such act being a mode of avoiding such violence or threats which under the circumstances would appear natural to the person injured; (
4. d)if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death; 399 Triantafyllides P. Rossides v. Republic (J983) (
5. e)if this act or omission would not have caused death unless it had been accompanied by an act or omission of the person kijled or of other persons". The above provisions of section 211 are similar to the principles applicable,, in this respect, in England and it is 5 pertinent to quote the following passage from Halsbury's Laws of England, 4th ed., vol. 11, para. 1156,pp. 615,616: 1156. Causation. For the purposes of offences of homicide, a person causes the death of another where byanyactoromissionheacceleratesthedeathofthat other. 10 The act or omission neednot bethe sole or the substantial causebut itmust beoneofthecauses,and onethat ismore than minimal. It istherefore possibletohavetwoor more independent operative causes of death, and any person whose conduct constitutes a cause may be convicted of 15 an offence in respect of the death. Itisnotnecessarythatthedeath shouldhavebeencaused in the way intended or foreseen by the defendant. It is enough that the death was a foreseeable or natural consequence of the' defendant's conduct; so if the defendant 20 threatened the victim who accidentally killed himself in tryingtomakehisescape,thedefendant isliablefor murder or manslaughter according to his men. rea. If a wound isinflicted and death results,the person who inflicted the wound will be held to have caused the death 25 although the victim may have neglected to use proper remedies,orhaverefused toundergoanecessary operation. Similarly, where a wound or hurt has necessitated medical treatment and such treatment is improper or negligent sothatdeath ensues,thewoundwillberegardedascausing 30 • thedeathifitcontinuestobeanoperativecauseat thetime of death; but if the original wound is merely the setting in which another cause operates, or has become merely part of the history of thecase,an ensuingdeath cannot be said to result from the wound and the person who inflicted 35 it cannot be said to have caused the death". It is useful to refer, too, in addition to the earlier cases of R. v. Smith, [1959] 2 All E.R. 193, and R. v. Blaue,[1975] 3 All E.R. 446, to the recent cases of R. v. Malcherek andR. v. Steel, [1981]2AHE.R.422,inwhich,whentheyweredetermined 40 400 2 C.L.R. Rossides v. Republic Triantafyllides P. together on appeal, there were referred to with approval the cases of Smith and Blaue,supra. IntheMalcherekaridSteelcasesitwasheldthat disconnecting a victimfrom alifesupportmachinewhen,bygenerallyaccepted 5 medical criteria, he was already dead, ,ould not exonerate the assailant from responsibility for his death. Havingcarefully considered all theevidencethat wasadduced at the trial as regards this particular issue, as well as the arguments which were advanced by counsel during the hearing 10 of the appeal before us, we have reached the conclusion that thefindingsof the trial Court that the cause of death of the deceased was "acute renal failure and shock with its consequences, uremia, oliguria, anuria, due to the many, extensive andseriousinjuries ofvitalvesselsandorgansofhisbodycaused 15 by gunshots*' and that the deceased was treated by thedoctors and the other hospital staff in good faith, and, inevery respect, with common knowledge and skill, were duly warranted in the circumstancesofthepresentcaseandthat,therefore,therelevant provisions of section 211of Cap. 154cannot beapplied in such 20 a manner as to reheve the appellant from his responsibihty for the death of the deceased. Thenext issuewith which wehave to deal isthat of whether the appellant was properly identified as being one of the three gunmen involved in the incident at which the deceased was 25 wounded and, particularly, whether the appellant was the gunman who was sitting on the bonnet of the landrover: In R. v. Turnbull, [1976]3All E.R. 549,the following guidelines were laid down by Lord Widgery CJ in delivering the judgment oftheCourt ofAppeal, Criminal Division,inEngland 30 (at pp. 551-553): "In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up the juries in the way indicated in this judgment. 35 First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges tobemistaken,thejudgeshouldwarnthejuryofthespecial need for caution before convicting the'accused in reliance on the correctness of the identification or identifications. 401 \ Triantafyllides P. Rossides τ. Republic (J983) In additionhe should instruct them as to thereason for the need for such a warning and should make some reference totheposibility that a mistakenwitness canbea convincing oneandthatanumberofsuchwitnesses canallbemistaken. Provided this is donein clear terms thejudge need not use 5 any particular form of words. Secondly, thejudge shoulddirectthejury toexamine closely the circumstances in which the identification by each wit­ ness cameto be made. Howlong did thewitness have the accused under observation? At what distance? In what 10 light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between 15 the original observation and the subsequent identification to thepolice? Was thereany materialdiscrepancy between the description of the accused given to the police by the witness whenfirstseen by them andhis actual appearance? If in any case, whether it is being dealt with summarily 20 or on indictment, the prosecution have reason to believe that thereis such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, 25 the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone 30 whom heknows, thejury should be remindedthat mistakes in recognition of close relatives and friends aresometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the 35 close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger. In our judgment, when the quality is good, as for example when the identification ismadeafter a long period of observation, orinsatisfactory 40 conditions by a relative, a neighbour, a close friend, a 402 2 C.L.R. 5 10 15 20 25 30 35 40 Rossides v. Republic Triantafyllides P. workmate a^d the like,thejury can safely be left to assess the value of the identifying evidence even though there isno other evidenceto support it; provided always, however, that an adequate warning has been given about the special need for caution. Were the,Courts to adjudge otherwise, affronts to justice would frequently occur. When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. Thismay becorroboration in thesense lawyers use that word; but it need not be so if its effect is to make the juiy sure that there has been no mistaken identification. For example, X sees the accused snatch a woman's handbag; he gets only afleetingglance of the thief's face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by Xto have run washis father's. Another example of supporting evidence not amounting to corroboration in a technical sense is to be found in R.v.Long1. Theaccused,whowas charged with robbery, had been identified by three witnesses in different places on different occasions, but each had only a momentary opportunity for observation. Immediately after the robbery the accused had left his home and could not be found by the police. When later he was seen by them he claimed to know who had done the robbery and offered to help to find the robbers. At his trial he put forward analibi whichthejuryrejected. It wasan oddcoincidence that the witnesses should have identified a man who had behaved in this way. In our judgment odd coincidences can, if unexplained, be supporting evidence. 1. [19731 57 Cr. App. Rep. 871. 403 Triantafyllides P. Rossides v. Republic

(1983)The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstance which thejury might think was supporting when it did not have this quality, the judge should say to. A jury, for 5 example, might think that support for identification evidence could be found in the fact that the accused had not given evidence before them. An accused's absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be 10 entitled to tell them that when assessing the quality of the identification evidence they could take into consideration thefact that it wasuncontradicted byany evidence coming from the accused himself. Care should be taken by the judge when directing the 15 jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get 20 lying witnesses to support it out of fear that his own evidence will not beenough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when thejury are satisfied that the sole reason for the fabrication was to 25 deceive them and there is no other explanation for its beingputforward, thatfabrication canprovideany support for identification evidence. The jury should be reminded that proving the accused has told liesabout where he was at the material time does not by itself prove that he was 30 where the identifying witness says he was". The above guidelines in the Turnbull case, supra, are referred to with approval in Archbold "Pleading, Evidence & Practice in Criminal Cases", 41st ed., p. 897, para. 14-2. Tne case of Turnbull was relied on by our Supreme Court 35 in Anastassiades v. The Republic,

(1977)2 C.L.R. 97, 281, and Katsiamalis v. The Republic,

(1980)2 C.L.R. 107, 116, and was, also, applied in R. v. Weeder, 71 Cr. App. R. 228, where the following were stated in the judgment (at p. 231): ;• "In our judgment the position is a simple one and the 40 404 2 C.L.R. Rossides τ. Republic Triantafyllides P. guidance provided by this Court in TURNBULL (supra) fully covers the position: 5 10 15

(1)When the quality of the identifying evidence is poor thejudge should withdraw thecase from thejury anddirect an acquittal unless there is other evidence which goes to support the correctness of the identification. The identification evidence can be poor, even though it is given by a number of witnesses. They may all have had only theopportunity of afleetingglance or a longer observation made in difficult conditions, e.g. the occupants of a bus who observed the incident at night as they drove past.

(2)Where the quality of the identification evidence is such that thejuiy can be safely left to assess its value, even though there is no other evidence to support it, then the trial Judge is fully entitled, if so minded, to direct the jury that an identification by one witness can constitute support for the identification by another, provided that he warns them in clear termsthateven a number of honest witnesses can all be mistaken". 20 The trial Court did not attribute in the present case any significance totheidentification of the accused only in thedock, but it relied on witnesses who knew the appellant before the fateful night of 17th July 1974, on witnesses who did not know him beforehand but who described him by his appearance and 25 each one of whom came to know, for some reason, the name of theappellant on that night or on the following day, onwit­ nesses who described his appearance and identified him at the identification parade held by the police and,lastly,on witnesses who described his appearance but could not identify him at 30 the said parade; and on the totality of this evidence it reached the conclusion that the appellant was the gunman who was sitting on the bonnet of the landrover at the material time. Having perused all the relevant evidence ourselves and given due weight to all the arguments of counsel in this connection 35 we have reached the conclusion that the identification of the appellant as one of the gunmenin question was safe beyond any reasonable doubt. Once we have held that the appellant was properly identified as one of the gunmen involved in the incident as a result of 40 which the deceased lost his life we feel satisfied, in the light of 405 Triantafyllides P. Rossides τ. Republic

(1983)the correct in our opinion conclusions of the trial Court as regards the common purpose of the gunmen on that night, and thepartthattheappellant played infurtherance of suchcommon purpose, that it was warranted beyond any reasonable doubt to find, on a proper application of section 21 of Cap. 154 to 5 the facts of the present case, the appellant guilty of causing by unlawful acts the death of the deceased. We shall deal next with the submission of counsel for the appellantthatsection 84

(4)oftheCriminal ProcedureLaw,Cap. 155, was applied, in the present case, by the trial Court in a 10 manner incompatible with Articles 12.5(

1. d)and 30.2, 3(b)(
2. c)of the Constitution: The count for homicide, in respect of which the appellant was convicted, was added by the trial Court, under section 83 of Cap. 155, at the close of the case for the prosecution, after 15 the appellant had been acquitted in relation to a count charging himwithpremeditatedmurder. After theappellanthadpleaded guilty to thenew added countit was ordered by thetrial Court, under section 84

(4)of Cap. 155,that theevidence already given in the course of the trial should be used without being reheard, 20 but the parties were informed that they were allowed to recall or re-summon any witnesses for examination or cross-examin­ ation with reference to the new count. The said section 84

(4)of Cap. 155 reads as follows: "

(4)When a charge or information is altered by the Court 25 after the commencement of the trial the evidence already given in thecourse of the trial may be used without being reheard but the parties shall be allowed to recall or re­ summon any witness who may have been examined and examine or cross-examine such witness with reference to 30 such alteration". When two witnesses were recalled for cross-examination by the defence the trial Court ruled that the expression "with reference to such alteration" in section 84

(4), above, meant "elements of the new offence which were not elements in the, 35 original count"; and it is this interpretation and application in the present case of section 84

(4)which has been challenged as being incompatible with Articles 12.5(

1. d)and 30.2, 3(b)(
2. c)of the Constitution. We do not think thattheapproach to themeaningand mode. 40 406 2 C.L.R. Ro&Jdes v. Republic Triantafyllides P. of application ofsection 84

(4),which wasadopted, as aforesaid, by the trial Couit offends against the aforementioned Articles of the Constitution, because we cannot accept that when a charge or information is altered at the close of the case for the 5 prosecution, under section 83 of Cap. 155, then defending counselisentitledtocross-examineafresh withoutanylimitation all the witnesses who have already testified. In our opinion thealteration of theinformation bytheaddition of anewcount did not render the trial of the appellant from then onwards a 10 newand separate trial, but there followed, after such alteration, a stage of the trial at which the appellant was entitled to the enjoyment of the rights safeguarded by the aforementioned Articles 12.5(

1. d)and 30.2, 3(b)(
2. c)of the Constitution only lo the extent to which he had to make his defence on the altered 15 information in relation to any elements of the added new count for the offence of homicide which hadnot been elements of the offence ofpremeditated murder with whichhehad beeninitially charged. For all the foregoing reasons the appeal against conviction 20 of the appellant fails and has to -be.dismissed accordingly. We shall deal next with his appeal against sentence: Counsel for the appellant has submitted that the sentence of fifteen years* imprisonment is manifestly excessive. The appellant was, at the time of the homicide of which he 25 was convicted, a thirty-eight years old shopkeeper with a clean past. It wasstressed bythetrial Court inpassing sentence upon the appellant that the incident in which the death of the deceased .was caused was part of the criminal activities which occurred 30 in the course of the abortive coup d'etat in July 1974; but the trial Court has, also, rightly pointed out that the appellant was tobepunished onlyfor thecrimeinwhichhewasfound tohave participated and not for the heinous crime against this country which was committed by means of the said coup d'etat. 35 Having in mind the settled principles governing the exercise of our relevant powers on appeal we have not been persuaded thatwewouldbejustified tointerveneinfavour oftheappellant for thepurpose ofreducingthesentencewhichwaspassed upon 407 Triantafyllides P. Rossides τ. Republic

(1983)him by thetrial Courtand,thus,his appeal against sentencehas to be dismissed, too. Ontheotherhand,wethinkthatthereareinthiscaseelements which merit consideration by the competent organs of the Republic under Article 53.4 of the Constitution with a view to the possibility of remission of sentence at an appropriate time in the future. 5 The aforesaid elements are the fact that the death of the deceased was not caused by shots fired by the appellant but by shots fired by anotherperson who has gone abroad to avoid 10 the consequences of his acts and whose extiadition until now has not been achieved, whereas the appellant, even though he was only prosecuted about five years after the commission of the crime in question, has made no attempt to evade justice; moreover, as was found by the trial Court, the leader, on that 15 night, of the group of gunmen was not the appellant but his co-accused Demetriades, who had to be discharged because it was not possible to establish that he was guilty of actual participation in the incident in which the deceased lost his life; furthermore, as was also found by the trial Court,theappellant 20 had no personal interest at all to take part in the commission of the crime in question; and, lastly, there could be taken into account, too, the fact that, as soon as it was realized that the deceased had been wounded, the appellant was instrumental in taking himfirstto the nearby home of a doctor and then to 25 the Nicosia General Hospital so as to secure medical treatment for him. Intheresuu mis appeal, against bothconviction andsenlence, is dismissed in the light of all the foregoing. Appealdismissed. 30 408