clr/1984/1984_2_110.pdf

(1)of the Military Criminal Code and Procedure Law, 1964. The Military Court believed the version of P.Ws.5 and 8 as true and found the appellant guilty as charged. The Court found that P.Ws.5 and 8 impressed them as truthful witnesses because they were answering questions with ease and in a natural way. It rejected the evidence of P.Ws.6 and 7 because it found that their intention was to help their colleague, the accused, so that he would not be charged. 110 5 10 15 20 25 2 C.L.R. 5 10 Toumba v. Republic in rejecting theversion ofthe accused and P.Ws.6 and7the Military Court failed to consider theevidence of P.W.2, acaptain inthe Military Police, who said that a Unit Policemancan onlyexercisepolice dutieswithinacampandsamedonotextend outside it,andto comparethisevidencewith that ofP.W.I,the Assistant Commander ofthe camp, inwhich P.Ws.5 and8served,andP.W.3,thedutyofficer ofthecamponthedaythealleged incident took place, whose allegations astothe orders given to P.Ws.5and8andastothenature oftheduties ofa Unit Policemanweretoovague. It,also, failed to examinethepossibility that P.Ws.5 and8 werenottellingthetruth becausetheywanted to cover their unauthorised presence at the club. Upon appeal against 15 conviction; Held,that considering all the above the appellant ought to have beengiven at leastthebenefit ofdoubt andfor this reason he will be discharged and acquitted. Appeal allowed Appeal against conviction and sentence. Appeal against conviction andsentence by Stephanos Kyprou 20 Toumba whowasconvicted onthe24th September, 1982bythe Military Court sittingat Nicosia (Case No.217/82)ononecount of the offence ofinsulting a superior contrary tosection 52

(1)of the Militaiy Criminal Code and Procedure Law, 1964on one count of the offence of insulting a soldier contrary to section 82 25 ofthe Military Criminal Code andProcedure Law, 1964andon one count of behaving in a manner incompatible with military discipline contrary to section 101ofthe Military Criminal Code and Procedure Law, 1964and was sentenced to three months' suspended imprisonment oncounts Iand2,to runconcurrently, 30 no sentence was passed on count 3. E. Efstathiou with S. Efstathiou, for the appellant. P. Ioulianou, for the respondent. TRIANTAFYLLIDES P.: The judgment of the Court will be deliveied by Mr. Justice Demetriades. 35 DEMETRIADES J. The appellant, a sergeant in the National Guard, wasfound guilty bythe Militaiy Court onthe following three" counts, with which he was charged before it: (a) Insulting a superior, contrary to section 52

(1)of the Military Criminal Code and Procedure Law of 1964. Ill Demetriades J . Toumba v. Republic

(1984)(

1. b)insulting a soldier, contrary to section 82 of the Mili­ tary Criminal Code and Procedure Law of 1964. (
2. c)Behaving in a manner incompatible with militaiy dis­ cipline, contraiy to section !0l of the Military Criminal Code and Procedure Law of 1964. 5 As a result, the Military Court imposed on the appellant a suspended sentence of impiisonment of three months on the first and the second count to run concurrently,and imposed no sentence on the third count as it found that such count is inclu­ ded in the first and second count. 10 In giving its reasons for finding the accused guilty of the charges brought against him,the Milita;y Court said that it war. an admitted fact that P.Ws. 5and 8,who were soldiers serving in a National Guard camp at Lakatamia and who, at the materia! time exercised duties of Unit Policemen, had, in the afternoon 15 of the 30th January, 1982, an oral permit from P.W.3 to carry out a peripheral patrol outside their camp, including ΤΗΟΓ Club at Lakatamia; thatwhilst theywere theretheaccused and P.Ws. 6 and 7,who wereall in mufti, airivedin a civilian car and that after the accused checked P.Ws. 5and 8in order to find out 20 whether they had a written permit from their Commanding Officer tobe outside their camp,and P.Ws. 5and 8told himthat they were there on oral orders and that if he so wished he could go and verify their allegations with the Officer in charge at the time of the camp, the accused littered insults both against the 25 Officer in charge, as well as against P.W.5. As it appears from the record of the proceedings before the Military Court, P.W.5 said that he and P.W.8, who both be­ longed to the Police of the Camp, were given orders orally to carry out a patrol peripherally of their camp in order to find out 30 whether there were soldiers outside the camp without a permit and for security purposes. In their round, he said, it could be said that THOf Club was included. After he and his colleague checked the club, hewent out where he met the accused who was in mufti. The accused, after show- 35 ing to him his Military Police identidy card, asked him for his identidy card in order to record his particulars. This took place, as P.W.5 said, after the accused asked him whether he had a written permit to be outside the camp and after the accused and P.W.8 reached the car in which the accused and his colleagues 40 112 2 C.L.R. Toumba v. Republic Demetriades J. arrived. This witness is further recorded to have informed the accused that he had an oral order to be there and that if the accused had doubts about it he could check his allegations with the officer in charge of the camp at the time. 5 As a result of an argument that followed regarding the handing by P.W.5 of his identidy card and the type of permit he and P.W.8 possessed, the accused, as was alleged by theft two Prosecution Witnesses, uttered the insults for which hewas charged. The accused gave evidence from the box and denied that lie 10 had insulted the superior officer of the two Prosecution Witnesses, or P.W.5. His two colleagues were summoned and gave evidence as hi?. witnesses. They. also, denied that accused uttered any insults. The Militaiy Court believed the version of P.Ws. 5 and 8 as 15 true and found the accused guilty as charged. The Court found that P.Ws. 5 and 8 impressed them as truthful witnesses because theyweie answering questionswith easeand in a natural way. ft rejected the evidence of P.Ws. 6and 7because it found that their intention was to help their colleague, the accused, so 20 that he would not be charged. In rejecting the version of the accused and P.Ws. 6 and 7 the Military Court failed toconsidertheevidence ofP.W.2,a captain in the Militaiy Police, who said that a Unit Policeman can only exetcisc police duties within a camp and same do not extend 25 outside it, and to compare this evidence with that of P.W.I, the Assistant Commander of the camp, in which P.Ws.5 and 8 sewed, and P.W.3, the duty officer of the camp on the day the alleged incident took place, whose allegations as to the oideis givento P.Ws. 5 and 8and asto thenature ofthedutiesofa Unit 30 Policeman were too vague. It, also, failed to examine the possibility that P.Ws. 5and 8were not telling the truth because they wanted to cover their unauthorised presence at the club. Considering all the above, we fold that the accused ought to have been given at least the benefit of doubt and for this reason 35 we discharge and acquit him on all three counts. Appeal allowed. Conviction and sentence quashed. Appeal allowed. Conviction and sentence quashed. 113