clr/1984/1984_2_165.pdf

(1984)Criminal Procedure—Trial on information—Witness giving evidence before the Assize Court without havinggiven evidence at the Preliminary inquiry—Formalitiesprescribed by section I11of the Criminal Procedure Law, Cap. 155 complied with—And witnesssubjected to long deep and penetrating cross-examination by defence 5 counsel—Defence not taken by surprice or in any wayprejudiced by the calling of this witness. Criminal Law—Premeditated murder—Principles applicable—Motive by itself not a decisivefactor tending to establish premeditation— Death by stabbing—No evidenceas to the circumstancessurround- iv ing the crime and as to whattook place between appellant and the victim—Doubt whether prosecution established premeditation beyond reasonable doubt—Conviction of premeditated murderset aside—Conviction for homicide substituted therefor. Criminal Law—Sentence—Homicide—Fourteen years' imprisonmenr. The appellant was found guilty for having caused the death of his wife with premeditation. The father of the victim who was living in the outbuildings of the house of the couple was early in the morning of the 21st August, 1978, awaken by a loud cry of pain of his daughter. When he entered the house he saw blood 20 stains in the bedroom leading all the way to the kitchen where he found the victim lying on the floor between the refrigerator and the door of the kitchen opening on to theverandah, wearingonly her brassiere and pants. On thefloor near the foot of his daughter theie was a knife. The victim died on her way to hospital. 25 The cause of death was haemorrhage due to a stab wound of the heart. The appellant who slept at hishousethat night fled to the mountains before the arrival of his father-in-law andno one knew of his whereabouts for the next 24 hours when at about 7-7.15 of the 22nd August, 1978 he appeared at a factory at Limassol 30 which issome miles from thescene ofthe crime and thereafter he went to the Police. His explanation for hisflight was that he did so because of a fear that if he was found by any of the relatives of the deceased at the scene, they would naturally think that he was the culprit and his life would be in danger. The appellant 35 alleged that his wife committed suicide but gave three inconsistent statements on three different occasions asto bow he witnes- 166 lj 2 C.L.R. Koufou v. Republic sed the suicide happening. The shirt and vest of the appellant bore blood-stains ofthe same group asthat of the victim. The issuesthat arosefor consideration bythe Assize Court were the following:5 (

1. a)Whethertheaccused killed hiswife or whether hiswife committed suicide, and (
2. b)If it were held that it was the accused who killed his wife, whether he did so with premeditation. 10 15 20 25 30 35 Regarding issue (
3. a)the Assize Court found that the murder was (
4. i)homicidal and that it was the appellant who killed the victim. Finding (
5. i)was based on the expert medical evidence, wliichwasadducedbytheProsecutionandcamefrom Dr. Keith Simpson, whose conclusion that the wound was homicidal and notsuicidalwas based,interalia,ontherarity ofself-stabbing in women and onthe situation and character of the wound. The finding that it wasthe appellant who killed hiswife wasreached by mainly taking into consideration the three inconsistent state-· ments of appellant as to the ciraimstances of the suicide, the bloodstainsonhisclothing andhisflight. Thislastfinding was ' unanimously reached bythethreeJudges constitutingtheAssize Court. Regardingthe issueof premeditation two ofthe Judges ,(the President the ofAssizeCourt and Pitsillides,S.D.J.)wereof the view that premeditation had been established, whereas the third Judge (Artemis, D.J.) wasoftheviewthat the prosecution failedtoestablishpremeditation.Onthequestionofpremeditation though the President and Pitsillides, S.D.J, agreedthat it was proved onthe evidence adduced, yetthey arrived atthat conclusion for somehow different reasons, or by evaluating differently the accepted facts. On the other hand, Artemis, D.J., though expressly stating that he was in full agreement with his brother Judges that it had been proved beyond reasonable doubt that it was the appellant who killed his wife for the reasons therein stated and that he was in full agreement with the Law and the authorities on the issue of premeditation, asset out in thejudgments of his brother Judges, yet in applying the legal principles flowingtherefrom tothefacts ofthecase,hewasoftheview that theprosecution hadfailedtoestablishpremeditation andgavehis reasons for such conclusion. 167 Koufou v. Republic

(1984)Upon appeal against conviction counsel for the appellant mainly contended: (

1. a)Thatthere wasnoverdict onthechargeof premeditated murder as decided by the majority of the Court. (
2. b)That the sentence of death which was imposed on the 5 appellant was signed only by the President and the S.D.J,andnot byallthree membersof theAssizeCourt. (
3. c)That thefindings ofthe trial Court werenot warranted by the evidence. (
4. d)That there was an irregularity at the trial in that the 10 Court allowed Dr. Simpson to give evidence before it without having given evidence at the Preliminary Inquiry and that thereby the appellant by the said irregularity and/or practice of the prosecution, was seriously prejudiced inhisdefenceandthat same goes tothe root 15 of the proceedings*. (
5. c)That the Assize Court attributed undue significance to the flight ofthe appellant after the death ofthe victim. In addition tothe abovecontentions thefollowing issuesarose for consideration by the Court of appeal:

(1)That witnesses whose reliability was attacked by the defence had refreshed their memory before giving evidence from statements madeshortly after the incident in respect of which they were asked to testify.

(2)The significance which in law should be given to incon- 25 sistentstatementsmadebyanaccusedpersonoutofCourt. * Dr. Simpson was called as a witness under the provisions of section 1[l of the Criminal Procedure Law, Cap. 155, whereby a person who has not given evidence at the Preliminary Inquiry may be called by the prosecution at the trial before the Assize Court and give evidence provided the accused or his advocate has been previously given a notice in writing containing the name of the witness intended to becalled and the substance of the evidence intended to be given; and these statutory provisions were complied with by the prosecution. 168 20 1 C.L.R. Koufou ΐ. Republic

(3)Whether on the facts as found by thetrial Court and on the conclusions drawn (hereon,the appellant could safely and beyond reasonable doubt have been found guilty of the premeditated murder of his wife. 5 iO Ϊ5 20 25 30 35 Held, perA. Loizou,J.,MalachtosandSawides, JJ.concurring. Triantafyllidcs. P. and Hadjianastassiou, J. dissenting.:

(1)That tuider our legal system the verdicts are two, "guilty" or "not guilty" the reasons leading to them being necessary to explain the conclusion reached but are not as such verdicts; that premeditation is a legal situation that in order to be establi­ shed one has to turn to the facts and all particular features in them in order to make a proper appreciation of them; that it cannot be said in this case that there has been either an incon­ sistent verdict or no verdict at all, because there was a majority verdict by two Judges finding the appellant guilty as charged for thepremeditated murderof hiswife andthisistheverdict against which thisappeal couldandhasin fact beenlodged; according­ ly contention (a) must fail.

(2)That *he fact that the sentence of death was net signed by the Judge who did net find the appellant guilty of an offence carrying such ientence,only showed consistency with hisconclu­ sion, and it would have been a great demand on a Judge's con­ science to sign a sentence which, in his ownjudgment, could not have been imposed on an accused person, inthe case as proved; accordingly contention (b) must fail.

(3)That thetrial Comt has cometo the right findings andthe right conclusions on admissible and properly received evidence, as regard the circumstances of the fatal stabbing and who infli­ cted it; that the case admittedly rested on circumstantial evidence but such evidence is as good as any other evidence when the links of the various pieces of evidence that make it up are properly connected and completethecircle of thechain leaving no room for doubl as to the ultimate conclusionthat is reached on the basis of it; that in the present case there was motive, opportunity, conduct by the appellant that preceded, conduct that followed, statementsandlies onhis part over and above the medical findings and of course the opinion of medical experts; 169 Koufou v. Republic

(1984)that if the latter evidence did not exist the rest of the evidence was sufficient to find that the fatal wound was a homicidal one caused bythe appellant andthatwasestablishedbeyondreasonabledoubtandtherewasnoroomfordoubtabout it; that onthe totality of the evidence before the trial Court its findings and conclusions unanimously reached by all three Judges were duly warranted and therewill beno interference with them; accordingly contention (c) must fail.

(4)That considering the question of prejudice by examining the record ofthe proceedings, onecannot fail to observethat the length, the deep and penetrating way of Dr. Simpson's crossexamination by counsel for defence, leave no room to consider that the defence wastaken bysurprise or in any way prejudiced bythe calling ofthiswitness; that ifthat wasfelt thentheright course would have been for counsel for the appellant to apply for anadjournment ofthe trial; andthat accordingly contention (d) must fail.

(5)That under the heading "Indirect Confessional Evidence" there may be referred the acts of concealment, disguise, flight, and other indications of mental emotion usually found in connectionwithguilt (seeWill'sPrinciplesofCircumstantial Evidence 7th ed. p. 138); that the trial Court examined this piece of evidence in conjunction with appellant's explanations about it and observed that this behaviour of the appellant, though not conclusive of his guilt, wasa strong indication of it; that there was nothing wrong in this approach and no undue impoitance has been given to it; accordingly contention (e) must fail.

(6)That there is no general rule that prospective witnesses may not before giving evidence at a trial, see the statements whichthey made a.1or near the time of the events of whichthey are to testify, but if the prosecution is aware that statements have been seen by witnesses it will be appropiiate to inform the defence; that in this case the approach of the trial Court was not inconsistent with the aforesaid statement of the law to which it directed itself properly; that they had in mind the factthat thewitnesshadreadhisstatement beforegivingevidence andtheyevaluated hisevidenceaccordingly; thathavingwatched himgivingevidence,they wereimpressed, they said,very favour- 170 2 C.LR. 5 10 15 20 25 30 35 Koufou v. Republic ably and accepted his testimony, being an independent witness who had gwen his statement to the Police when the events were fresh in his mind and when he had"read his statement the Assize Court had no doubt that he merely refreshed his memory and nothing more.

(7)That theAssizeCourt merelyelaborated ontheinconsistent statements made by the appellant with regard to the circumstances under which his wife came to her death on that fateful morninginordertodisbelievehisversion thatshehadcommitted suicide; that there was nothing wrong in this approach and the trial Court have not atliibuted to the inconsistent statements any more significance than they ought to in the circumstances.,

(8)(

1. a)That the burden of establishing beyond reasonable doubt the element of premeditation is upon Ihc prosecution"; that this may be discharged either by direct evidence or by inference from the surrounding circumstances of the case; that. moreover, this inference has to be not only consistent with the evidence but the facts of the case must be such as to make it inconsistent with any other rational conclusion than that the act was committed with premeditation; that for premeditation to beestablished it isessential to show intention to cause death which was formed and continued to exist before the time of the act causing the death as well as at the time of the killing notwithstanding that having regard to the assailant's state of mind,hehadtheopportunityto reflectupon anddesist fromsuch intention; that the time which elapses between the formation of fhe intention to kill and the execution of that intention is a relevant factor in determining whether there was sufficient opportunity 1oreflect whether to kill or not and in this respect the state of a person's mind is an essential element. (
2. b)That motive by itself though a factor tending to show that the killing was premeditated was not by itself a decisive one because onewho hat a motive to kill somebody may eventually happen to kill him in the course of a quarrel which he did not anticipate and without any premeditation; that as there was no evidence as to the circumstances surrounding the crime and asto whattook place betweentheaccused and thevictim on the fatal morning, there are doubts, whether the prosecution have 171 Koufou v. Republic

(1984)established beyond reasonable doubt that the accused killed his wife with premeditation; that, further, there is no doubt that there preceded an altercation before the fatal wound was inflicted and it cannot,therefore, be concluded that the appellant had sufficient opportunity after forming his intention to reflect 5 upon it and relinquish it; that viewing all the surrounding circumstances and indentions that might have existed a1 the time, it is secured to say that the appellant should have been found guilty of homicide, contrary to section 205 of the Criminal Code, Cap. 154, and under the powers that this Court has under section 10 I45(l)(c) of the Criminal Procedure Law, Cap. 155 the conviction for premeditated murder is set aside and the conviction is sub­ stituted for the offence of homicide contrary to the aforesaid section 205. Held,unanimously, that this is a homicide of a most serious nature; and thata sentence of fourteen years' imprisonment will be imposed on the appellant as from the date of his conviction. ί5 Appeal allowed. Conviction for premeditated murder set aside; conviction for homicide substituted therefor. 20 Cases referred t o : R. v. Hunt, 52 Cr. App. R. 580; R. v. Durante [1972] 1 W.L.R. 1612; R. v. Andrews-Weatherfoit Ltd. and Others [1972] 56 Cr. App. R. 31; 25 Koutras v. Republic

(1976)2 C.L.R. 13; Anastasiades v. Republic

(1977)2 C.L.R. 97 at p. 161; Kouppis v. Republic

(1977)2 C.L.R. 361; Khadar v. Republic

(1978)2 C.L.R. 132; Davie v. Edinborough Magistrates [1953] S.C. 34; Worley v. Bentley [1976] 2 All E.R. 449; R. v. Westwell [1976] 2 All E.R. 812; Vouniotis v. Republic

(1975)2 C.L.R. 34; Halil v. Republic, 1961 C.L.R. 432; 172 30 2 C.L.R. Koufou t. Republic R. v. Shaban. VIII C.L.R. 82; Aristidou v. Republic

(1967)2 C.L.R. 43 at p. 74; AuPui-Kuenv. Attorney-GeneralofHong Kong [1979] I All E.R. 769 at pp. 771-772; 5 Rex v. Cooper [1969] 1AH E.R. 32; Ktimatias v. Republic

(1978)2 C.L.R. 82 at pp. 96, 97; Burks v. UnitedStates

(1978)90 S. Ct. 2141; Savva v. Police, 18 C.L.R. 192 at pp. 193-194; 'Antoniou and Others v. Republic,1964 C.L.R. 116 at p. 129; 10 Katsaronas andOthers\. Police

(1972)2C.L.R. 17 at pp.35-36; Reg. v. Stone (Unreported, December, 13, 1954 C.C.A.); R. v. Drury, 56 Cr. App. R. 104 at pp. 105, 114: Zissimidesv. Republic

(1978)2 C.L.R. 382 at pp. 432-433; Pierides v. Republic

(1971)2 C.L.R. 263 at pp. 273-276; 15 Haiderv. /(.,68 Cr. App. R. 120 at pp. 123-124; Reid v. Queen [1979] 2 All E.R. 904 at pp. 905, 907. Appeal against conviction and sentence. Appeal against conviction and sentence by Georghios Panayiotou Koufou who was convicted on the 2nd May, 1979 at 20 the Assize Court of Limassol (Criminal Case No. 13691/78) on one count of the offence of premeditated murder contrary to section 203

(2)of the Criminal Code, Cap. 154 and was sentenced by Kourris, P.D.C., Pitsillides, S.D.J, and Artemis, D.J. to death. 25 G. Cacoyiannis with P. Pavlou. for the appellant. A. Frangos, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. TRIANTAFYLLIDES, P. The first judgment will be delivered 30 by Mr. Justice A. Loizou. A. Loizou J.: Theappellant was found guilty and sentenced to the statutory sentence of death by a majority verdict of two of the three Judges composing the Limassol Assize Court, 173 Λ. Loizou J. Koufou v. Republic (HH for having caused on the 21st August, 1978, the death of his wife with premeditation by an unlawful act,contrary to section 203(l)

(2)of the Criminal Code, Cap. 154, as amended by Law No. 3 of 1962. The Assize Court dealt first extensively in its judgment with 5 the evidence adduced and the conclusions drawn therefrom with regard to the circumstances of the killing and the identity of the culprit, which facts were unanimously accepted by ail three Judges and found that the appellant had killed his wife. Then the three members of the Assize Court proceeded to give 10 their separate verdicts and reasons thereof on the question of premeditation as they were not in agreement. The President of theAssize Court and H.H.Pitsillides, S.D.J., were of theview that premeditation had been established, where­ as the third member, H.H. Artemis, D.J., was of the view that the prosecution failed to establish premeditation. On the quest­ ion of premeditation though the President and H.H. Pitsillides agreed that it was proved on the evidence adduced, yet thc> arrived at that conclusion for somehow different reasons, or by evaluating differently the accepted facts. On the otherhand, H.H. Artemis, D.J., though expressly stating that he was in full agreement with his brother Judges that it had been pioved beyond reasonable doubt that it was the appellant who killed his wife for the reasons therein stated and that he was in full agreement with the Law and the authorities on the issue of premeditation, as set out in thejudgments of his brother Judges, yet in applying the legal principles flowing therefrom to the facts of the case, he was of the view that the prosecution had failed to establish premeditation and gave his reasons for such conclusion. Before proceeding any further with the facts and ciicumstances of the case as well as the grounds of appeal I find it convenient to dispose here of two of them argued on behalf of the appellant. The first is that there was no verdict on the charge of premeditated murder, as decided by the majority of 35 the Court, for, inter alia, the following reasons: (

1. a)The two of the three members of the Assize Court, who purportedly constituted the majority (the third 174 20 25 2 C.L.R. 5 10 Koufou v. Republic A. Loizou J . member dissented), gave separate judgments disagreeing between themselves as to the grounds of which they based their conclusions, arrived at their verdict by different routes thereby not constituting between themselves a united majority and therefore not a majority at all. (
2. b)The judgment of the Court and the verdict arrived at was tainted by the lack of verdict and the lack of consensus as between e.ll and each of the three members of the Assize Court. In this way, it became difficult or impossible to distinguish those facts on which there wasunanimity, those facts on which therewas majority agreement and those facts on which there'was disagreement. 15 The second ground which was connected with this one was that the sentence of death imposed on the appellant was signed only by the President and the Senior District Judge, that is, the two Judges who found that the offence of premeditated murder that carried this sentence was proved. 20 and not by all three members of the Assize Court. It has been argued on behalf of the appellant on these two grounds that the disagreements between the two Judges in their reasons for the issue of the premeditation and the disagreement of the third member with the other two, left 25 the case with no verdict at all. Under section 47 of the Criminal Procedure Law, Cap. 155, a Court has a duty upon the trial of any person either acquit him and thereupon discharge him or convict him and impose on him such punishment as may be provided by the 30 enactment under which he is convicted and as the circumstances of the case may require. Under section 77 of Cap. 155, a Court does so at the conclusion of the hearing when after considering the whole case it delivers its judgment, for which purpose may adjourn 35 the - trial. Under subsection 2 of the aforesaid section when the Court consists of more than one Judge, and an Assize Court consist of three Judges, unless a majority of the Court considers the accused guilty, he has to be 175 Λ. Loizou J . Koufou v. Republic

(1984)acquitted; and under subsection 3 thereof, if the accused is found guilty the Court shall convict him and proceed to consider what sentence shall be imposed upon him. Extensive argument has been advanced in the piesent case and reference has been made to a number of English 5 authorities on the question of inconsistent verdicts. We have been referred, inter alia, to Archbold's Criminal Pleading, Evidence and Practice, 40th Ed., para. 622. and the authorities refened to therein, namely, R. v. Hunt, 52 Cr. App. Rep. 580, where it was held that the burden of 10 establishing that verdicts are inconsistent rests on the defence; also to the case of R. v. Durante [1972] 1 W.L.R. 1612, where it was held that the further burden of showing that die verdicts were so inconsistent as to call for inter­ ference by an Appellate Court was also on the defence. 15 The case of R. v. Andrews-Weatherfoil Ltd. and Others [1972] 56 Cr. App. R. 31 was also cited on the issue of inconsistent verdicts. A perusal of all the^e authorities shows that the qaobiior. of inconsistent verdicts arose therein from different circum- 20 stances, and in respect of different counts or in case wheie there was trial by two juries on sepaiatc trials, though of course in the latter case there may be different evidence presented by the two trials or simply different views which the two juries separately take of the witnesses. There may be 25 of course cases where inconsistent verdicts are returned by the same juiy and the position theie is usually more simple. As stated in Archbold (supra), para. 622 at pp. 451, 452, 453, "if the inconsistency shows that the single jury was confused or self-contradictory its conclusions are unsatisfactoiy 30 or unsafe and neither verdict is reliable". 1 need not go any further in presenting the legal position in England on this subject as the facts of the present case differ materially and do not bear out the point raised by learned counsel for the appellant. Inour case there has been a majority 35 verdict by two Judges for premeditation. In the separate judgments delivered they give different reasons for arriving at their conclusion. There was apparently a different appreciation of situations or more impoitance attached to certain aspects of theevidence by the one than by theother Judge. TheJudges 40 176 2 C.L.R. Koufou \. Republic Λ. Loizou J. in the majority had a different appreciation for the same facts and circumstanceswhichhad been commonlyagecd andaccept­ ed by alt tluee of them. Premeditation is a legal situation that in order to be establish5 ed onehas to turn to the facts and all particular features inthem in order to make a proper appreciation of them. It cannot be said in this case that therehas been either an inconsistentverdict or no verdict at all. We have a majority verdict by two Judges finding the appellant guilty as charged for the premeditated 10 murder of his wife and this is the verdict against which this appeal could and has in fact been lodged. We have also a minority verdict for homicide and again this verdict is also challenged by this appeal. •a»Under our legal system theverdicts aie two, "guilty" or "not 15 guilty", the reasons leading to them being necessary to expla.n the conclusion reached but are not as such veidiets. The second question, namely, that the sentence of death was not signed by the Judge who did not find the appellant guilty of an offence carrying such sentence, only showed consistency 20 with his conclusion, and it would have been a great demand on a Judge's conscience to sign a sentence which, in his own judgment, could not have been imposed on an accused person, in the case as proved. It is true that in the case of Koutrasv. TheRepublic

(1976)2 25 C.L.R., 13, in spite of the disagreement onthe outcomeof the appeal, all threeJudges agreed to the nentence to be imposed on the lesser offence onwhich the majority of theCourtfound that appellant guilty and convicted him, but there was nothing in Law against that course, nor does that course suggest that all 30 three Judges should have agreed to the imposition of the sent­ ence, which in the opinion of one of them, same was not war­ ranted as the accused was not guilty of any offence calling for such sentence. These two grounds therefore should fail. I shall proceednow to set out thefacts as unanimously found 35 by the Assize Court and in the course of so doing I shall be dealing with some of the arguments advanced on behalf of the appellant as part of the ground of appeal that the verdict is unsatisfactory having regard to the evidence adduced. The appellant, 31 years of age, was married to the deceased, 177 Λ. Loizou J . Koufou ι . Republic

(1984)then i*ged

1. on the 18th February, 1972, and they had two childien, aged 11 and 6 years respectively. They lived in their house in Limassol at No. 4 Filikis Eterias Street. Since the summer of 1977 the appellant formed a bond with a certain Lenia, wife of a Police Constable, and he made no secret of this 5 relationship. In the morning of the 21st August,
2. at about 4.45 a.m. the father of the deceased. Theodoros Alecou Theodosiou, who was living with his wife in the outbuildings of the house of the couple, was awaken by a loud cry of pain of his daughter. 10 He woke up his wife and in his underwear ran towards the rear verandah of the house. On finding the kitchen door locked, he attempted to get an access into the house through the childicn's bedroom window unsuccessfully and eventually he came to the front door which he found ajar. When he entered the 15 house he saw bood-stains in the bedroom leading all the way to the kitchen wheie he found his daughter Alcca lying on the floor between the refrigerator and the door of the kitchen opening on to theverandah, wearing only herbrassiere andpants* He then unbolted the kitchen door for his wife to come in. 20 He saw a knife lying on the floor near the foot of his daughter which he took and went out in search of the appellant, whom he did not find. With the help then of two neighbours, Nicos Georghiou and Stavros Demetriou, Aleca was wrapped in a bedsheet, still alive, and by car taken to Limassol Hospital 25 where on arrival at 5.20 a.m., Dr. Tsaparillas certified her to be dead. From the opening, however, and closing of her eyelids whilst in the car, it was inferred that she must have died onthe way to the Hospital at approximately 5 to 5.15 a.m. From there her dead body war, conveyed to the mortua:y 30 and kept under guard until the arrival of DT. Panos Stavrinos on the same day who first examined the body externally and then carried out a post-mortem examination, after the apparel she was wearing were seized as exhibits and the necessary photo­ graphs were taken. The brassiere (exhibit 26) was found to 35 have a slit located at about the middle of the garment between the two cups. I shall be referring, however, extensively to the findings and opinion expressed by Dr. Stavrinos when 1shall be dealing with the medical evidence in the case. Suffice it to say now that her 40 178 2 C.L.R. Koufou \. Republic Λ. Loizou J. death was due to haemorrhage due "to a stab wound of the heart". The Police took scrapings of blood from the bloodstains found in the bedroom, corridor and kitchen of the house, which 5 were examined together with the blood-stained sheet of the bed on which the couple was sleeping and the blood on one of a paii of flip-flops which was found in the bedroom and all this blood was found to belong to Group A' Rhesus positive which is the same one as the blood group of the deceased. 10 The appellant who slept at his house that night fled to the mountains before the arrival of his father-in-law and no one knew of his wheie abouts for the next 24 hours when at about 7-7.15 of the 22nd August,
3. he appeared at the factory of a certain Aman which is off the main road leading to Nicosia. 15 some miles outside the town of Limassol. and from the scene of the crime. There he met and spoke to Socratis Christodoulou, the brother of a certain Aman. and Georghia Efpraxia. one of the employees. From there he telephoned to Elli Potamitou, the mother-in-law of his brother Yiannakis Panayiotou. 20 as a result of which these two relatives picked him up in the latter's car from the vicinity of the factory and acting on his expressed wishes, conveyed him and handed him over to Chief Inspector Polydorou at the Limassol Central Police Station who arrested him on the strength of a warrant that had aheady been 25 issued against him. The Assize Court attributed significance to the flight of the ' appellant in their findings and their observation that he only decided to givehimself up to the Police when he was pursuaded to do so by Socratis Christodoulou who argued that this was 30 .the only reasonable solution to his problem, was contested by the defence as being a biased and arbitraly conclusion as the appellant had already decided on his own to give himself up. No doubt, in my view, he was encouraged to give himself up by thesaid witness irrespective of whether hehad already decided 35 to do so or he was wavering about it. The explanation of the appellant for his flight was that he did so because of a fear that if he was found by any of the rela­ tives of the deceased at the scene, they would naturally think that he was the culprit and his life would be in danger. This 179 \ . Loizou .
4. Koufou v. Republic (1984> fear appears to have been justified from the fact that the father of the deceased on finding his daughter stabbed took the knife and searched for the appellant, obviously for the purpose of revenge. But. of course, his fears alone could not have led him to the mountain?, he could have, as the Assize Court put 5 it. gone out of reach of his wife's relatives, and to have contacted the nearest Police Station which was a few hundred yards away, but he did not do this. After his arrest he gave to Inspector Frangos a statement under caution which is exhibit 30 and to the contents of which 10 inevitably there will be reference in due course. On the same day the Police took his clothes, consisting of his shirt, trousers, vest, pants, socks i'.nd shoes for examination. They also took from him, with his consent, a sample of blood which upon exammalion it was found to be Group *B\ The 15 shoes, socks, trousers and pants were negative in blood but the shirt and vest bore blood-stains which after examination wc.e found to be of Group *A\ Rhesus positive. On the 15th September, 1978,hewasfoimally charged (exhibit 31) and his reply was to the effect that he had not killed his 20 wife. The case for the prosecution was that the rtab wound which caused the death of the deceased was inliicted by the appellant with premeditation, whereas the case for the defence was that thewound was self-inflicted by the deceased, that is, she com- 25 mitted suicide, and that even if the Court were to hold that it was the appellant who stabbed the deceased, then in any event premeditation had not been established by the prosecution. The Assize Court summed up the following two questions as being the ones it had to decide: 30

(1)Whether the accused killed his wife or whether his wife committed suicide, and

(2)If it were held that it was the accused who killed his wife, whether he did so with premeditation. A good part of the judgment of the Assize Court is covered 35 by the medical evidence which for the prosecution consisted ISO 2 C.L.R. Koufou \. Republic Λ. Loizou J . of (

1. a)that of Dr. Panos Stavrinos, a qualified pathologist, hold­ ing a Diploma of Pathology of the Royal College of Physicians and Surgeons and who attended a course on Advanced Foiensic Medicine at the Metropolitan Police and who is now in charge 5 of the Histopathology and Morbid Anatomy Department of the Nicosia General Hospital and in charge of the Medicolegal Examination of Police Exhibits; and (
2. b)Professor Keith Simpson, of London, whose assistance the Cypius Police enlisted in October 1978. He is the Senior Home Office Pathologist 10 in the United Kingdom and Professor Emeritus in Foiensic Medicine to the University of London, a Fellow of the Royal College of Pathologists. Fellow of the Royal College of Physician:>and author of books on Forensic Medicine and the editor of the last edition of Taylors Medical Jurisprudence. He has 15 had some 40 years experience in this speciality, including a wide range of types of cases both in the United Kingdom and abroiiJ. and he has personally made examination·; of and lecords of over 100.000 medicolegal cases and gave evidence in Couit in many countries outride the U.K. 20 For the defence two doctors weie called: Dr.' Georghios Doritis, a Psychiatrist who graduated Athens Univeisity in 1968 and specialist in psychiatry, is in private practice in Linuusol since 1973, and a Government Psychiatrist at the Limassol Hospital on a part-time basis. Dr. Antonis 25 Koutsellinis, who graduated the Medical School of the Univer­ sity of Athens in 1959, a Specialist in Foiensic Medicine and Toxycology or Forensic Pathology, and he has been in this field for about 20 years; he was on a research contract in the U.S.A. on thefirstoccasion ayear, and on asubsequent occasion 30 for three to four months. He is an Assistant Professor at the aforesaid School in charge of this field as the professor, holder of this seat, is not there for reasons with which we are not concerned. • He has performed 2,000-3,000 post-mortem examinations. Though he is not a specialist psychiatrist, he 35 followed courses in Athens and abroad on psychiatry and in view of that knowledge and experience, he expressed opinions on matters in this field as the very question of suicide brought in issuethepsychological state of feloms de se and thecharacter­ istics in the behaviour as well as the motives adopted in com40 mitting suicide and on such other matters as the tentative wounds. 181 Λ. Loizou J . Koufou f. Republic

(1984)The findings of Dr. Stavrinos were summed up by the Court as follows: "Before the post mortem examination he examined the dead body of the deceased and observed the following: (i} At the left region of the chest below the left nipple 5 and at a distance of 7 cms. anteriorly, at the (left) margin of the lower part of the body of the sternum, a stab penetrating would measuring 3cms. in its length sideways with clean cut margins with bruise and haematoma of the surrounding soft tissues and muscles. 10

(2)At the left wrist posteriorly and externally there were tiny but very shallow lacerations with irregular scratches and a severe bruise at the first metacarpal region inter­ nally. The scratches were marked by this witness on photo ' Ξ ' of cxh. 3 with the letter 'X'. The bruise 15 does not show in the photograph.

(3)A smooth but very shallow incised wound in the left palm which measured 7 1/2 cms. Again this wound appears in photogiaph 'Ξ* of exh. 3. The doctor opened up the dead body and carried out an 20 autopsy and found the following:

(1)The tract of thepenetrating wound was straight and oblique in direction from the left side of the victim towards the right side and with a slight inclination from down upwaids and inwards; it extended within the chest 25 cavity. The wound penetiated the muscle of the right ventricle of the heart and communicated with the cavity of the right ventricle without lacerating the posterior muscles of the ventricle; the length of the wound on the light ventricle was 1 1/2 cms. 30

(2)The left lower margin of the body of thesternum was fractured and tiny bonefragments were missing and found embedded in the muscles of the vicinity internally.

(3)The pericardium was torn and thepericardial sac was full of clotted bood measuring 500 mis. Also the chest cavity contained 1 litre of clotted blood.

(4)Otherwise all other internal organs appeared to be healthy and without abnormalities. 182 35 2 C.L.R. 5 Koufou v. Republic V. Loizou J. In cross-examination the doctor was asked to define the position of the wound in relation to the rib interspace in­ volved. Having given several diffeient answers as to that position, with the aid of a human skeleton available in Court, he finally concluded in re-examination that the rib interspace involved was the one between the 5th and the 6th ribs. In the opinion of the doctor the stab wound was caused by a sharp bladed instrument (τέμνον καΐ νύσσονδργανου) 10 He said that the knife (exh. 22) is such an instrument and could have caused the said stab wound". The next piece of medical evidence for the prosecution came from Dr. Keith Simpson, for which the Assize Court had this to says: 15 20 '*__.__ _ the facts put to him arc evidence raising a very strong piesumption that the stab wound is homicidal and not self-inflicted. This kind of evidence, as the witness stated, led him to the conclusion that it was a homicidal wound. Hegave his opinion and arrived at this conclusion basing himself on the following factors:

(1)The raiity of self-stabbing in women. He stated that he had been into his records for the last ten years and he had not had one case of a woman stabbing herself. 25 30 35

(2)The situation of thewound, fn thewitness's experience as he has testified, it is common to find stab wounds directed at the heart through thepit of thestomach where the heart is felt beating and where there is no resistance to a wound directed in that sort of way, in effect because of the absence of underlying bones.

(3)The absence of tentative cuts. Thewound is unaccom­ panied by any tentative pricking of the skin or tentative cutting anywhere else, something common in suicides. He stated that it is common for suicides whether by cutting or by stabbing, to make feeling movements, ' tentative cuts or feelers, to locate the knife in the right place. This wound he said had no such marks.

(4)The character of the wound, ft is a clean, straight, 183 Λ. Loizou J. Koufou *. Republic (1984 penetratingwound with oneslit entry which is not rocked passing straight into the heart at an angle to a consider­ able depth.

(5)The force used to inflict thewound. The witness ex­ plained that the fracture of the left lower margin of the 5 body of the sternumindicates thatveiy considerable force was applied. He clarified that the sternum is dense and tough and it is exceedingly difficult to press a knife through it. From his experience when he performs post mortem examinations he has to use a sa\v to cut through 10 it. Hefurther testified that bearing in mindthedirection of the wound as put to him and the necessary force required to fiacture the sternum on the assumption that the victim was right-handed,he considered the possi­ bility of self-inflicting such a wound by any person, 15 let alone a woman, to be quite untenable.

(6)Theslit onthebrassiere. Thewitness saidthatassuming that the slit on the brassiere was caused by the knife at the time of the infliction of the wound, which in his opinion was the reasonable inference, then this was 20 another factor advocating against self-infliction of the wound. As he explained, from his experience, in cases of suicide the clothing is pulled aside or is pulled down almost always, though notnecessarily always so, whereas in homicidal cases the body is taken as it is. i.e. dressed 25 or undressed.

(7)The existence of the incised wound on the left palm of the deceased which the professor described as a 'protect­ ive' or 'defensive' wound aswell as other minor injuries. i.e. scratches on the left wrist, though he conceded that 30 this need not have necessarily been caused at the time of the stabbing". The Assize Couit then examined what the defence suggested to this witness regarding the stab wound on the deceased and that it could also be the result of self-infliction if the knife was 35 either placed against the mattress and the deceased thrust her body against it or if the deceased, holding the knife on her chest, fell either accidentally or purposely on the floor and it summarized the statements of this witness as follows: 184 2 C.L.R. 5 10 15 20 25 30 35 40 Koufou v. Republic Λ. Loizou J. "With regard to the first suggestion thewitness was positive inhis opinion thatsuch a wound couldnot have beencaused in such a way, for the amount of force necessary was far greater than would result if the wound was inflicted in such a manner. Regarding the second possibility of falling on to the floor, the witness said that this was conceivable, provided that a number of unusual conditions existed and particularly that the deceased by coincidence happened to fall in that position on the floor quite cleanly, without rolling in any way. Any degree of rolling would have caused rocking of the knife in the wound thereby causing the slit of the wound to be twisted, ragged or torn. The witness went on to say in cross-examination that he found it difficult to accept that the fall was in such a way that it merely went on driving the knife straight in and did not flatten into thebody or rock. Bearing in mind the strength necessary to drive a knife into the sternum, the doctor said that it would require not merely rolling out of bed but fal­ ling heavily with the whole weight of the body against the knife on-to the floor. In such a case the witness would also expect to find smeared blood stains on the floor but he conceded that had the victim got up immediately and fallen on to the bed, that might have eliminated this possi­ bility. He would also expect to sec some marks on the floor, and more particularly so as the floor was wooden, caused by the handle of the knife, unless the fall was on the rug which was on the floor next to the bed. As regards the incised wound found in the left palm of the deceased the witness conceded in cross-examination that it was possible for the wound to have been caused while the victim was pulling the knife out of her body, although he would have though that it would be natural to withdraw a knife with the hand on a safe part of it and not by the blade. He went on to say that if the knife was gripped to pull it out he would expect the cut to be deeper than if merely the knife had passed by it. In re-examination this witness stated that the final con­ clusion towhich hecame,i.e. that thewound.was homicidal and not suicidal was based on the following, taken collectively: 185 Λ. Loizou J. Koufou ». Republic (19S4)

(1)On the rarity of self-stabbing in women.

(2)On the situation and character of the wound, which is not in the pit of the stomach but set at the edge of the breast bone and passing through it. a condition requiring great force. 5

(3)On the fact that it is a clean, straight, penetratingwound. with one slit entry, which is not rocked, passing straight into the heart to a considerable depth.

(4)On the fact that it is unaccompanied by any tentative pricking of the skin or tentative cutting anywhere else. 10

(5)On the fact that the body shows what in his view can be considered a defensive wound on the hand as well as other minor injuries". The Assize Court then examined at length the evidence of the defence medical expe.ts and dealt with the legal aspect of 15 evidence given by expert witnesses and in that respect referred to the cases of Anastassiades v. The Republic

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

(1977)2 C.L.R., p. 361; and Klutdar v. The Republic

(1978)2 C.L.R., p. 132; and then adopted with respect what Lord President Cooper said in the 20 case of Davie v. Edinborough Magistrates

(1953)S.C., p. 34, which has been adopted and followed by this Court in the afore­ mentioned cases. Lord President Cooper at p. 40 said the following: "Their duty is to furnish thejudge orjury with thenecessary 25 scientific criteria for testing the accuracy of their conclu­ sions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence". It dealt then with the evidence of Dr. Doritis and the factors 30 he gavethat led him to theopinionheexpressed that thecircum­ stances of thecase were suggestive of suicide. TheAssizeCourt rejected his opinion on the ground that the said factors did not exist and they we.e not prepared to give weight to his evidence. I reveit now to the evidence of Dr. Stavrinos. The Assize 35 Court, after commenting on c e ^ i n aspects of his handline 186 2 C.L.R. Koufou \. Republic A. Loizou .1. of exhibits and in particular the vest and shirt which were removed from the appellant and deliveied to him which he kept in a cupboard and examined only after 17 days when he knew or ought to have known that in order to specify the age 5 of a blood-stain one must examine it as soon as possible and in any event not later than 48 hours, said that they were not satisfied with the explanation he gave on this aspect. Moreover, they commented adversely on his lack of experience and in so far as the opinion he expressed said that they were not 10 prepared to give much reliance to it and that when they were going to make their findings they intended to base themselves on thefindings of more experienced doctors, that is, the evidence of Professors Simpson and Koutsclinis. They stressed, however. that what they said with regard to that aspect of the doctor's ift testimony, samedid not take "away the credibility and reliability of this witness on other topics of his evidence and particularly as to obseivations andfindings both internal and external upon and in the body of the deceased. This witness was subjected to rigorous cross-examination and at very considerable length but 20 he was not shaken as to his findings. He was positive that the edge of the left lower part of the body of thesternum was broken and fractured and that tiny bone fragments were missing and were found embedded in the muscles of the vicinity. In this respect, we may say. that he was certain that what he described 25 as 'tiny bone fragments' wereactually bone thoiigh not examined under the microscope because a pathologist according to his evidence and the evidence of Dr. Simpson, can find out whether such fragments are bone and not cartilage macroscopically. Furthermore, during the autopsy. Dr. Stavrinos observed the 30 fracture on the sternum .and the fact that tiny bone fragments were missing from it and that the ribs were not fractured at all. Therefore, thesuggestion oftheDefence (a)that thesternum was not fractured but merely chipped off at the side or (b) that the fragments were cartilage having been removed from the point 35 where the ribs join the sternum and not bone, cannot stand". This conclusion of the Assize Court is significant as it is on thesefindings that Professor Simpson gavehisevidencefor which the trial Court had this to say: 40 "Professor Simpson gave his evidence in a clear and con crete way and we do not think that this witness has been evasive or unconvincing as suggested by Defence Counsel; 187 A. Loizou J. Koufou y. Republic (1984i on the contrary, he was often ready to make concessions which might weaken his opinion, a fact that shows that he was ready to give an honest opinion on the matter. The Professor was cross-examined at length on the opinions he expressed; he was also cross-examined rigorously on each 5 and eveiy ground on which he based his opinions; and it was suggested to him that the material which was made available to him and onwhich hebased hisconclusions, was in certain respects inadequate, and in this connection the Professor said that he had adequate material to base his 10 opinion; he went on to say that had he performed the autopsy he would have saved the sternum for others to see and he would also have made a separate report about the clothing. He also accepted the possibility of alternatives which were put to him, but under certain conditions. But 15 till the veiy end of his evidence he felt quite sure that his opinion was correct and concluded that the wound was homicidal. We do not think that the evidence of Professor Simpson is based on wrong facts and has no value at all as suggested by the Defence." 20 With regard to the evidence of Dr. Koutselinis the Assize Court had this to say: " Professor Koutselinis finally expressed the view that all the foldings in this case are indications pointing towards suicide for the following reasons: 25

(1)The situation of the wound is such to be accessible to a right-handed suicide.

(2)The psychological condition of the victim caused by the problem she had with her husband shows a tendency towards suicide which under certain circumstances and 30 under the pressure of extraneous events can lead to a sudden suicidal attempt. In this view he was strengthened by the history of a previous suicidal attempt.

(3)The absence on the body of any injuries indicating a scuffle between the victim and a culprit. It should be pointed out at this stage, even though at a latter stage a detailed comparison of this witness's evidence and that of other witnesses will be made, that the grounds 188 35 2 C.L.R. 5 10 15 20 25 30 35 40 Koufou ι. Republic Λ. Loizou J. (I) and

(3)he gave could not properly be considered as indicarions of suicide, but at the most as neutral factors pointing to neither direction. This is more obvious from the witness's suggestion that the time of the stabbing -being in the early morning -is indicative of suicide as early morn­ ing is the most likely hour of emotional loading which finds an outlet in suicide. As, however, this hour could be equally a time at which a homicide may be committed, one cannot leaily say that the fact of the hour of the stabbing points in any one of the two directions. As to the previous attempt of suicide, we shall express our view when we come to analyse the evidence of Dr, G. Doritis. It is also, we think, somewhat presumptive on the part of this witness to state that there is absence of injuries indicating a scuffle which leads him to the conclusion that this is an indication of suicide, in view of the fact that the injuries on the left hand and wrist though equivocal, could, in our judgment, be considered as suchevidence. So,in our viev/this witness could have at least madeno mentionof this as a ground for sayingthatthepresent casecontainedindicationsof suicide". The Assize Court then dealt at length with the question of tentative cuts which a person who is about to commit suici­ de with a knife causes to himself in the vicinity of the fatal wound, theinjury of thestemum and theslit on thebrassiere, ί do not intend to elaborate on the question of the tentative wounds but the injury of the stemum calls to be dealt with more extensively. On these points the trial Court'had this to say: ". . Although we would not be prepared to find as a fact that the point of the knife hit the sternum on the front part of it at a distance of approximately 1-1 1/2 cms. from the edge as suggested by Professor Simpson, we are satisfied that it was quite possible for the point of the knife at such angle to havehit at least the margin of the sternum. Therefoie, we find that the view of Professor Simpson that the situation of thewound and the tract of the wound are fully consistent with the findings of Dr. Stavrinos that the knife broke and fractured the left margin of the sternum is quite consistent with the ieal evidence in the case. This is also consistent with the knife having thereafter entered the right ventricle of theheart, part of which, as it was finally stated 189 \. Loizou J. Koufou \. Republic

(1984)by Professor Koutselinis and as it appears from exh. 40. lies behind the stemum, the heart near the 5th rib interspace being according to his evidence only 1-1 1/2 cms. from it. Theevidenceof Professor Koutselinisontheconsistency of the tract of the wound with the fracture of the 5 sternumisquiteunsatisfactoiy andnoreliancecanbeplaced on it. inhisexamination-in-chief theeffect ofhistestimony was that the knife could not have passed from the entry slit, strike the sternum and reach the right ventricle. In cross-examination he expressed the view that this could 10 happen, i.e.,hestated that the knife couldhavereached the right ventricle either having hit or scraped the sternum or having not done so. In re-examination he again excluded this possibility sayingthat hisformer viewwasgeneral and notreferable tothepresent caseandpropounded thestrange 15 theorythat for thestemumtohavebeenstruck,thedirection of the knife should have been with an inclination from the right side of the body of the deceased towards the left, which, of course, obviously would not tally with the location ofthe slitofthewound. Much has beensaid bythe 20 Defence of the use by Professor Simpson of the words 'passing through the sternum* which were used by this witness when he described the way the knife must have fractured the sternum. Having in mind the explanation given by Professor Simpson when he stated what he meant 25 byusingthesewords,wedonot think that thisisan assumption on his part that is not born out by the evidence of Dr. Stavrinos as to the fracture he found on the sternum. The evidence of Professor Simpson that the knife passed thiough thesternumisquiteconsistent with theevidenceof 30 Dr. Stavrinos who said that the knife broke and fractured the sternum. This, obviously, means no more than that part of theblade of theknife must have passed through the edge of the sternum. In the light of the foregoing and accepting Professor 35 Simpson's opinion that for any bone fragments to be detached andfor afracture tobecaused thepoint ofthe knife musthavehitthesternum,wefind asafact thatthepointof the knife did hit and fracture the edge of the stemum. As to the structure ofthe stemum the experts agreed but 40 190 2 C.L.R. Koufou v. Republic Λ. Loizou J. the opinion of Professor Simpson differs from the opinion of Professor Koutselinis as regards the strength required to fiactuT, it". 5 10 i5 20 On the question of the brassiere the finding of the Assize Court was the fol lowing: "„ Bearing in mind the medical evidence of both sides, wo also find that though it is usual for suicides to move or lift up clothingbut which couldby no meansbe excluded as not happening, especially in a case involving a flimsy garment notcapable of offering any reristence like thebrassiere inthe present case, wc find that this fact is of no real significance in pointing either towards homicide or suicide. However, what in this instance is somewhat more indicative of homi­ cide rather than suicide is the fact that the slit on the brassiere does not conespond with the situation of the wound when the brassieie is worn in place; for if this were a case of suicide, one would have expected the brassieie to have been in position when the self-stabbing occurred, and its not being in position, is slightly more suggestive of homicide as it indicates that some scuffle might have taken place as a result of which the brassiere moved at the time of the stabbing." On the force required to fracture the sternum and whether such force could have been self-inflicted, the Assize Court 25 said that having accepted the opinion of Professor Simpson on this point they had no hesitation to hold that the wound could not have been self-inflicted by suicide and especially by a woman as in the present case and went on to say the following: 30 35 "__- Even though the other factors, (except the injuries on the left hand and the wrist and the situation of thewound), as we have intimatedabove, arenot eachby itself conclusive of homicide, taken all collectively they point towards homi­ cide, and without ascribing undue weight to them we con­ sider thattheir effect is to strengthen ourfinding that this is a case of homicide which we base on the force required to cause such a wound. Another factor thattendstohave the same effect is that the wound in the present case is directed slightly from down upwards, which both Professor Simpson and Professor Koutselinis accepted as something generally 191 Λ. Loizou J. Koufou τ. Republic (19iU> found iit cases of homicide andnot suicide: andwecannot fail to obseive that Professor Koutselinis stated that this was oneof thereasonswhy heexpressed theviewthatinthis case this is another ground indicative of suicide, obviously basing himself on the wrong assumption that the wound in the present case did not have that upward direction. 5 We have based our conclusion as to force on our finding that thepoint of the knife hit theedge of the sternum. But even if we were to find that only theedge of theknife did so (and then it would have to be the blunt edge for if it were 10 the sharp oneit would nothave caused a fracture but a cut) our conclusion would still have been the same; because, again, for a fracture tobe caused and for bone fragments to be detached and embedded in the mu.cies at least the same foice should have been exerted. We say 'at least the same 15 force' for, in our view, it is most probable, if not certain. that even gteater force and a steadier direction of the knife by the hand ought to have been applied in such a case, for otherwise the knife would have sitded off the sternum into softer tissues on its way to the heart." 20 Significant in this case and independent of the medical evi­ denceaTethecontentsof thestatementsof theappcllant madeon three different occasions which arc dealt with by the Assize Couri. Thefirst ones arc the statements the appellant madeon the 22nd August. 1978, that is. the day following the offence and 25 the explanation he gave to them about the death of his wife to Socratis Christodottlou. the brother of Aman, whom upon asking him as to how his wife died, he said that his wife had stabbed herself with a knife and had died and on further asking him as tohow thishad happened, theaccused replied thathehad 30 an argument with his wife and whilst arguing somebody came to bring him eggs and hewent outside to take the eggsand when he entered into the house he saw his wife holding a knife, he didnot manage to take it away from her and she stabbed herself. When asked what he did then, the appellant replied that he left 35 and when hewas asked why he did so, he said that he had to go awaybecause if any of the members of thefamily of the deceased came and found him there,they would think that he had killed her. The second statement was to Yiannakis Panayiotou who ac- 40 192 2 C.L.R. 5 10 15 20 Koufou v. Republic Λ. Loizou J. companied him in the car to the Police Station where he was going to givehimself up and who asked him what had happened and the appellant replied that he believed thathis wife had com­ mitted s\ricide andwhen thewitness asked himhow thishadcome about, the appellant replied that at that moment he was in the bathroom and as soon as he came out of it he saw her stabbed, giving also as to his flight the same explanation that he gave to the other witness aboxit his fears of retaliation from the lelatives of the deceased who might stispect him as the culprit. The statement the appellant gave to.the Police and in particular the explanation he gave therein as to the death of his wife is also material and the relevant part is to the effect that they got up in the morning,his wife was awake and asked him where he would go when she saw him dressed and told her that Kouzalis who would fetch eggs would be coming. He left from the bedroom and went to the bathroom to wash himself and when he finished and was retUiningto thebedroom, heheard a scream of his wife, he ran to the bedroom where he saw his wife holding a knife with her hand and leaning and falling down from bed on the ground and blood running on her. And that when he saw her so and heard their child crying, opened the door and he left because he was afraid lest he was killed also for having killed his wife. This statement was adopted by the appellant in an unsworn statement from the dock as correct. 25 The appellant, therefore, clearly gave three inconsistent ver­ sions of what he allegedly witnessed happening that morning and the Assize Court came to the conclusion that the appellant was, in fact, lying when he was putting foiward his allegation that his wife had committed suicide, as had he really witnessed 30 such happening the Assize Court would certainly have expected the appellant, as they said, to have given a consistent story to all those to whom he spoke. With regard to thewritten statementthe trial Courthad this to say: 35 40 "Reverting now to the written statement made to the Police by the accused which became his version before this Court when it was adopted from the dock, it is obvious that this version is not supported by the real evidence in the case. It is a fact that Professor Simpson said that if the deceased fell on to thefloor and got on to the bed at once before the 193 Λ. Loizou J. Koufou v. Republic

(1984)bleeding started,onemightnotfind any blood stains where shefell. But theallegation of theaccused inthisstatement is that when she fell on to thefloor, bleeding had already started; in fact, as he said, blood was pouring from the deceased. Therefore, one would have expected to find at 5 least somequantity of blood onthefloor whereshefell and not only the two drops on theflip-flop, which in any way was at some distancefrom thebed,andthereal evidence is that noblood at all was found at this spot. It should also be noted that the accused's allegation is that the deceased 10 held the knife with onehand when she fell, which in our judgment, would have certainly caused a rocking of the knife inthewound, if the deceased fell onto thefloor with the knife on her chest,which is not so in the present case. Therefore, having in mind the inconsistency of this 15 version with theversions put forward in theoralstatements made by the accused, as well as the inconsistency of this version contained in exh. 30, with the real evidence as explained above, we havenohesitationin rejecting thestory of the accused as untrue". 20 Another piece of evidence which was again unconnected with the medical evidence was theflight of theappellant which isnot devoid of significance in the chain of circumstantial evidence. The Assize Court then gave its final conclusion which is the following: 25 ""Conclusion Having analysed theevidence and in view of our findings as to the medical evidence, particularly, as to the force re­ quiredtoinflict thewound inquestion,andbearing in mind the threeinconsistent statements of theaccused andthelies 30 told thereinby the accused, as we have hereinabove stated, and taking also into consideration our findings as to the blood stains on his clothing and their effect thereof onthe case, as well as theflight of the accused in the light of our observations, wehave nohesitationinholdingthatthecom- 35 bined effect of all these grounds is that the prosecution haveprovedbeyondreasonabledoubtthatitwastheaccused who stabbed the deceased with the knife, exh.22, in the .bedroom of their house on the fatal morning of 21.8.78, causing her death. 40 194 2 C.L.R. 5 Koufou v. Republic Λ. I^oizou J. We would like here to add that we consider the other evidence so overwhelming against theaccused thatwe would have still been satisfied beyond reasonable doubt of the fact that it was the accused who killed his wife, even without the medical experts' opinion". Having outlined the facts of the case as found by the trial Court, the conclusions drawn thereon and the reasons given for reaching both, 1 am faced with the dilemma as to whether I should examine one by one the several arguments advanced on 10 behalf of the appellant in this appeal whereby these facts and conclusions were challenged, a course that inevitably would take in all fairness several hundred pages as the address of counsel for the appellant has taken, or whether I should give briefly my conclusions on thefacts bearing in mindthatthere is a judgment 15 of an Assize Court and it was upon the appellant to show that that judgment was wrong and of couise try to.give the reasons for arriving at such a conclusion myself as briefly as possible. Having heard counsel dealing with every aspect of the case and eveiy piece of evidence at such length and so thoroughly and 20 having had,.page after page of the record, read and re-read again in connectionwith one or another aspect, I have reached the conclusion that the trial Court with its meticulous judgment has come to the right findings and the right conclusions on admissible and properly received evidence, as regards the cir25 etimstances of the fatal stabbing and who inflicted it. The case admittedly rested on ciicumstantial evidence but such evidence is as good as any other evidence when the links of the various pieces of evidence that make it up are properly connected and completethe circle of the chain leaving no room for doubt as to 30 the ultimate conclusion that is reached on the basis of it. In the present case there was motive, opportunity, conduct by the appellant that preceded, conduct that followed, statements and lies on his part over and above the medical findings and of course the opinion of medical experts. And as the trial Court 35 rightly said, even if the latter did not exist,the rest was sufficient to find that the fatal wound was a homicidal one caused by the appellant and that was established beyond reasonable doubt and there was no room for doubt about it. 195 A. Loizou J. Koufou v. Republic

(1984)Onthetotalityoftheevidencebefore thetrialCourtitsfindings and conclusions unanimously reached by all three Judges were duly warranted and I am not prepared to interfere with them. What remains to consider now are certain legal aspects of the caseinaddition tothosewithwhich Ihavealreadydealtandthe 5 question as to whether the infliction of the wound from the circumstances as found by the Assize Court, premeditation as understood to-day in our law,has been proved beyond reasonabledoubt OTnot,couldalsobeinfeired withthesamedegreeof certainty as is required in a criminal prosecution. 10 The first of these legal points is the following: IthasbeenaTguedon behalf oftheappellant that thetrialwas irregularity in that the Court allowed Dr. Simpson to giveevidencebefore itwithout havinggivenevidenceat the Preliminary Inquiry and that thereby the appellant by the said irregularity 15 and/or practice of the prosecution, seriously prejudiced hint in his defence and that same goes to the root of the proceedings. Dr. Simpson was called as a witness under the provisions of section 111of the Criminal Procedure Law, Cap. 155, whereby a person whohasnot given evidenceat the Preliminary Inquiry 20 may be called by the prosecution at the trial before the Assize Court and give evidence provided the accused or his advocate hasbeenpreviouslygivenanoticeinwritingcontainingthename ofthewitnessintended tobecalled andthesubstance oftheevidenceintended to begiven. Thereisaprovisotothisstatutory 25 provision but we are not concerned with it. Thereisno doubt that the aforesaid prerequisites of this statutory provision were complied with by the prosecution. What was, however, contended more was the insufficiency of the information about the evidenceofthiswitnessgivenbytheprosecution andthefact that 31) the trial Court in its judgment "wrongly, arbitrarily and unreasonably considered that Dr. Stavrinos's evidence at the Pieliminary Inquiry ought to have given to the defence sufficient notice of the evidence intended to be given and actually given by Dr. Simpson at the trial'*. This statutory provision is in 35 effect a codification of the corresponding English Position and Practiceastobefound inArchboU Criminal Pleading,Evidence and Practice,40th Ed., para.446,whererefereuce ismade tothe Criminal Justice Act of 1967and to a number of decisions and here it is stated: 40 "— The same point, however, having been raised in R, v. 196 2 C.L.R. 5 10 Koufou v. Republic A. Loizou J. Greenslade,11 Cox 412, Brett J., after consulting Willes J., said that he had the authority of the latter for saying that hisruling inR. v.Stiginaniwasincorrectly reported and that evidence tendered in the circumstances above mentioned, ifrelevant, ought to be received, although the fact of notice of its intended production not having been given to the defendant or his solicitor was a subject of strong comment. Ifa defendant istaken by surprise by additional evidence, noticeofwhichhasnot been served upon him,he may apply for the adjournment of the trial: R. v. Wright [1934] 23 Cr. App. R. 35. This, in effect, represents the current practice". Considering the question of prejudice by examining the record of the proceedings, one cannot fail to observe that the length, 15 the deep and penetrating way of Dr. Simpson's cross-examination by counsel for defence, leave no room to consider that the defence was taken by surprise or in any way prejudiced by the calling of this witness. If that was felt then the right course would have been for counsel for the appellant to apply for an 20 adjournment of the trial. Of course, in our case the statutory requirements as already said, have been complied with and I do not need to pronounce on the question whether if no such compliance exists, such evidence if tendered at the trial could be at all received. 25 The next issue for determination is the extent of the significance, if any, which the Assize Court should have given to the flight of the appellant after the death of the victim. Asalready said the trial Court examined this piece of evidence in conjunction with his explanations about it and observed that 30 this behaviour of the appellant, though not conclusive of his guilt, was a strong indication of it. In my view there was nothing wrong in this approach. No undue importance has been given to it. As stated in Wills' Principles of Circumstantial Evidence 7th 35 edition under the heading "Indiiect Confessional Evidence" at p. 138, "To this head may be referred the,acts of concealment, disguise, flight, and other indications of mental emotion usually found in connection with guilt." And further down at p. 141 it is stated: 197 A. Loizou ,1. Koufou v. Republic

(1984)"ft is not possible to lay down any express test by which these various indications may be infallibly referred to any moTe specific origin than the operation of fear. Whether that fear proceeds from the consciousness of guilt, or from the apprehension of undeserved disgrace and punishment. and from deficiency of moral courage, is a question which can be judged of only by reference to concomitantcircum­ stances." 5 And in the concludmg paragraph at p. 142 it is suited: "In the endeavour to discovei truth, no legitimate evidence Iο should be excluded; but great caTe should be exercised to prevent an undue importance being given to circumstances not necessarily irreconcilable with innocence although they may create suspicious. Circumstances of such a character are meremake-weights, and nothingcan be moredangerous 15 than to eke out a weak case by attributing to them an impoitance which they ought not to possess (see observations of Abbot, J., in Rex v. Donnall, supra, pp. 139-140, and of Shaw, C.J.. in Piof. Webster's case, referred to supra. p. 140)." 20 The flight of the appellant had, therefore, to be viewed in the context of the whole evidence and this appears to have been the approach of the Assize Court. No more importancewas attri­ buted to this factor than it ought to. Another question laised was the fact that witnesses, and in 25 particular prosecution witness Socratis Christodoulou, whose reliability was attacked by the defence, had refreshed their me­ mory before giving evidence from statements made shortly after the incident in respect of which they were asked to testify. The position with regard to this point can be found in the cases of 30 Worley v.Bentley [1976] 2 All E.R. 449, approved in R. v. Westwell [1976J 2 All E.R. p. 812. In Westwell case Bridge L.J., at p. 814 had this to say: "There is no general rule thatprospective witnesses may not before giving evidence at a trial, see the statements which 35 they made at or near the time of the events of which they are to testify. They may see them whether they make a request to do so or merely accept an offer to allow them to 198 2 C.L.R. 5 10 15 20 25 30 35 40 Koufou v. Republic A. Loizou J. do so. On the other hand, there is no rule that witnesses must be allowed to see their statements before givingevidence. Theremaybecaseswherethereisreasontosuppose that the witness has some sinister or improper purpose in wanting to see his statement and it is in the interests of justicethatheshouldbedeniedtheopportunity. Examples are suggested in the Home Office circular and in thejudgment ofthis court in R. v. Richardson. HoweveT, in most cases and particularly wheie, as often happens, there is a long inteiVal between the alleged offence and the trial, the interests ofjustice a-*elikelytobebest served andwitnesses will be mo;e fairly treated if, before giving evidence, they areallowedtorefresh their recollectionbyreference totheir ownstatementsmadenearthetimeoftheeventsinquestion. Aswassaid bythe Supreme Court of Hong Kongin 1966, in passages quoted with approval by this court in R. v. Richardson, ifa witness is deprived of this opprotunity his testimonyinthewitnessboxbecomesmoreatestofmemory than truthfulness; and refusal of access to statements would tend to create difficulties for honest witnesses but would be likely to do littletohamper dishonest witnesses." And further down he said: "Since hearing the argument in this appeal, our attention has been called to the decision of the Divisional Court in Worleyv. Bentleyin which the same point arose. The court held that it was desirable but not essential that the defence mould be informed that witnesses have seen their statements. We agree. In some cases the fact that a witnesshasread his statement before goinginto thewitness box may be relevant to the weight which can properly be attached tohisevidenceandinjustice might becausedtothe defendant if the jury were left in ignorance of that fact. Accordingly, if the prosecution is aware that statements havebeenseenbywitnessesitwillbeappropriateto inform the defence. But if, for any reason, this is not done, the omission cannot of itself be a ground for acquittal. If the prosecution tell the defence that the witness has been allowed to see his statement the defence can make such useoftheinformation asitthinksprudent, butinanyevent the defence, where such a fact may be material, can 199 Λ. Loizou J. Koufou v. Republic

(1984)ask the witness directly when giving evidence whether the witness has recently seen his statement. Where such info­ rmation is material it does not ultimately matter whether it is volunteered by the prosecution or elicited by the defence". The approach of the trial Court was not inconsistent with the aforesaid statement of the law to which it directed itself properly. They had in mind the fact that the witness had read his statement before giving evidence and they evaluated his evidence accordingly. Having watched himgivingevidence, IΟ they were impressed, they said, very favourably and accepted his testimony, being an independent witness who had given his statement to the Police when the events were fresh in his mind and when he had read his statement the Assize Court had no doubt that he merely refreshed his memory andnothing more. ! 5 The next question that merits examination is the significance which in law should be given to liesand inconsistent statements made by an accused person out of Court. This question was extensively dealt by this Court in the case of Vouniotis v. The Republic, in the light of a number of authorities referred to 20 therein and I need not deal with it now as the Assize Court in the present case merely elaborated on the inconsistent state­ ments made by the appellant with regard to the circumstances under which his wife came toher death onthat fateful morning in order to disbelievehis version thatshe hadcommittedsuicide 25 and they concluded by saying: "Having in mind the inconsist­ ency of this version with the version put forward in the oral statements made by the accused, as well as the inconsistency of this version contained in exhibit 30 with the real evidence as explained above, we have no hesitation in rejecting the story 30 of the accused as untrue". I find nothing wrong in this approach. They have not attributed to it any more significance than they ought to in the circumstances. It now remains for me to examine whether on the facts as found by thetrial Court and on theconclusions drawn thereon, 35 the appellant could safely and beyond reasonable doubt have been found guilty of the premeditated murder of his wife. OnceIacceptthatshecametoherdeathasaresult of thewound inflicted on her by him in the circumstances already outlined 200 5 2 C.L.R. Koufou τ. Republic A. Loizou J. in this judgment. On this point we have a concurrence of opinion in their verdict for premeditated murder of the President of the Court and H.H. Pitsillides, Senior District Judge. They have arrived, however, at that verdict by a different evaluation 5 of the significance of various pieces of evidence accepted in the unanimous findings of the Assize Court. There is also the dissenting judgment of H.H. Artemis, D.J.; there is no disagree­ ment as to the principles governing premeditation which have been extensively set out and leiterated since Independence in 10 a number of cases and which I need not repeat here. Suffice it to say that they start with the cases of Haiti v. TheRepublic, 1961 C.L.R., 432, where reference is made to the principles governing premeditation to be fotmd in the case of 7?. v. Haiti Slutban, VIII C.L.R. 82, and duly summed up in the case of 15 Anastassiades v. The Republic

(1977)2 C.L.R., 97, where at page 161 L. Loizou, J., summed up the position as follows: 20 25 , 30 35 "It follows from all the foregoing that premeditation is a question of fact which must be proved by the prosecution either by direct or indirect evidence. The time which elapses between the formation of the intention to kill and the execution of that intention is a relevant factor in deter­ mining whether there was sufficient opportunity to reflet whether to kill or not and in this respect the state of a person's mind is an essential element. In other words if there was or was not premeditation does not merely depend on the length of the period that elapsed between the formation of the intention and its execution but also on the state of mind of the assailant as an element affecting his capacity to reflect on his decision and desist from it within such period. For premeditation to be established it is, therefore, essential to show intention to cause death which was formed and continued to exist before the time of the act causing the death as well as at the time of the killing notwithstanding that having regard to the assailant's state of mind, he had the opportunity to reflect upon and desist from such decision". Not doubt the burden of establishing beyond reasonable doubt the element of premeditation is upon the prosecution. This may be discharged either by direct evidence or by inference 40 from the surrounding circumstances of the case. Moreover 201 A. Loizou J. Koufou v. Republic

(1984)this inference has to be not only consistent with the evidence butthe facts of thecase must besuchasto make it inconsistent with any other rational conclusion than that the act was committedwithpremeditation (seeas Isaid inthe Anastassiades case (supra) at p. 150). JudgeArtemis found that motive byitself asheld in the Anastassiades case (supra), though a factor tending to show that the killing was premeditated, was not by itself a decisive one because one who hasa motive to kill somebody may eventually happen to kill him in the course of a quarrel which he did not 10 anticipate and without any premeditation. The situation of the wound, the reaction of the accused to the accusations of a previous homicidal attempt, the flight of the accused, were also found to be both consistent with the absence of premedidation as a whole. On the question of theflighthe said, the 15 failure of the appellant to contact the nearest Police Station after he was out of reach of the deceased's relatives, amounted to evidence showing that the appellant was the perpetrator of the deedand not that the killingwastheresult of premeditation for "any killer either with or without premeditation have tried 20 to evade detection and arrest". Hedealt also with the question of the knife used m inflicting the fatal wound and that it was accepted that it was not one of the domestic utensils used by the family and that it was first seen by witnesses in the house after the stabbing, he was not 25 satisfied that the only inference that could be drawn from that was that the appellant brought it to the house, let alone that he brought it with the purpose of killing his wife. The knife could have been brought to the house a few days before by anybody including the appellant for any purpose unconnected 30 with the crime and he concluded: "Not knowing the circumstances under which the stabbing tookplace,Iconsideritveryunsafetoinferthattheaccused in order to use it had to go from the bedroom and get it from somewhere and that this would have amounted to 35 premeditation as it would have given the accused ample timeto reflect and relinquish hisdecisionto killthevictim, especially as I do not know what his state of mind was at the time. 202 5 2 C.L.R. 5 Koufou >. Republic A. Loizou ,1. For all the above reasons and as 1have no evidence as to the circumstances surrounding the crime and as to what took place between the accused and the victim on the fatal morning. I am not satisfied that the prosecution have estaWished beyond reasonable doubt that the accused killed hiswjfe with premeditation. Intheresult, in my judgment, the accused ought tobe convicted only of homicide contraiy to section 205 of the Criminal Code, Cap. 154". I share the doubts expiessed in this dissenting judgment with 10 regard to the proof of premeditation in the present case. There is no doubt that there preceded an altercation, to say the least, before the fatal wound was inflicted. Also the Assize Court in dealing with the slit on the brassiere did not exclude that it moved out of place as a result of a scaffold, f cannot, 15 therefore, conclude that the appellant had sufficient opportunity after forming his intentionto reflect upon it and relinquish it. The question of ρ emeditation, as pointed out, is a question of fact. But as stated by Tiser, C.J., in the case of Rex v. Halt! Shaban, VI([ C.L.R.. p. 82, at p. 84: 20 25 "There might be a case in which a man has an appreciable timebetween the formation of his intentionand the canying of it intoexecution, but he might not be in such a condition of mind as to be able to consider it. On the other hand, a man might be in such a calm and deliberate condition of mind that a veiy slight interval between the formation of the intention and its execution might be sufficient for premeditation. In the present case we are not satisfied that the fact justify a finding of premeditation". 30 Inthe present case, viewingall the surrounding ciicumstances and intentions that might have existed at the time. [ feel at the end of the day secured tosay thattheappellant should have been found guilty of homicide, contrary to section 205 of theCriminal Code, Cap. 154, andunder thepowers that this Court has under 35 section 145(l)(c) of the Criminal Procedure Law, I set aside the conviction for premeditated murder and convict the appellant for the offence of homicide contrary to the aforesaid section, namely, that on the 21st August, 1978, at Limassol, in 203 A. Loizou J. Koufou v. Republic

(1984)the District of Limassol, by an unlawful act he did cause the death of Alecca Georghiou Koufou, late of Limassol. MALACHTOS J.: I agree with thejudgment just delivered by mybrother JudgeA. Loizou,which Ihadtheadvantage toread in advance, for the reasons given and the conclusions reached by him and I have nothing useful to add. I agreewiththejudgmentjust delivered bymy brother Judge A. Loizou, which I had the advantage to read in advance, for the reasons given and the conclusions leached by him and I have nothing useful to add. 5 SAWIDESJ.: 10 TRIANTAFYLLIDES P.: The salient facts of this case have been set out adequately in thejudgment just delivered by A. Loizou J. and I nee^d not repeat them. 1 find myself unable to agree with the view of the majority of my brother Judges that the conviction of the appellant for 15 premeditated murder should be set aside and that he should, instead, be convicted of the offence of homicide, because I am of the opinion that the proper coursein this case isto set aside theconvictionofthe appellantand makean orderfor theretrial ofthecase. 20 My reason for reaching this conclusion is that from the separate judgments of the three trial judges on the issue of premeditation(bymeansofwhichtheappellantwasfound guilty of the offence of premeditated murder bytwo ofthem,Kourris, P.D.C.,and Pitsillides,S.D.J.,and guilty only of the offence of 25 homidicebytheother one,Artemis D.J.) thereemergesaserious divergence of findings and views as regards essential aspects of this case which renders the basicfindingthat the appellant has killed his wife unsafe and unsatisfactory. In my opinion the situation that has thus arisen is closely 30 analogoustothatwhichisbroughtaboutbyinconsistentverdicts of a juiy on different counts, in the same case, on the basis of essentially the same evidence. In R. v. Hunt,[1968]2 Q.B.433,Lord Parker C.J. statedthe following (at p. 438): "In the course of his argument the Court hasbeen referred to a great number of cases dealing with apparently inconsistentverdicts,insomeofwhichtheverdicthasbeenupheld 204 35 2 C.L.R. 5 10 15 20 Koufou v. Republic TrlantafyUMes P. and in others in which it has been quashed. They ares ofcourse,bytheirverynaturecasesinwhichthetwocount, being compared andwhich aresaid tobeinconsistent aTe closely linked either onthefacts orbyreason of motive orinregard tothenature ofthedefences,but theprinciple, asitseemstothisCourt, ineverycaseiswhethertheinconsistencyissuchthatitwouldnotbesafetoallowtheverdict, which prima facie is entirely a proper verdict, to stand. There isauseful passageinregardtothe approach that the Court should make which was given by Devlin J. in theunreported case of Reg.v.Stone

1. Devlin J. there said, at page 3 of the transcript: 'When anappellant seekstopersuadethis.Court ashis groundofappealthatthejuryhadreturnedarepugnant orinconsistent verdict,theburden isplainly upon him. Hemust satisfy the Court that thetwoverdictscannot standtogether,meaningtherebythatnoreasonablejury who hadapplied their mind properly to thefacts in thecasecouldhavearrivedattheconclusion, and once oneassumes that they arean unreasonable jury, or they could not have reasonably come totheconclusion, then the convictions cannot stand. But the burden isupon thedefence toestablish that"'. In R.v.Drury,56 Cr. App.R. 104,Edmund Davies L.J. 25 said (at pp. 105, 114): "This isa most puzzling case. It gives rise once moreto the question ofhow theinconsistent verdicts ofjuriesare to be regarded in this Court. Wereject astooboldthe proposition that thesimple fact that a jury hasreturned 30 inconsistent verdicts, acquitting onsome count or counts and convicting on others, means that in every such case thisCourtisobligedexnecessitatetoquashtheconvictions. Therearecaseswhich,inourview,canarisewhenitwould be proper for this Court to saythat, notwithstandingthe 35 inconsistency, the conviction or convictions must stand. It alldepends upon thefacts ofthe case. This isone ofthose cases where the verdicts ofthe jury
2. Unreported, December 13, 1954, C C A . 205 Triantafyllides P. Koufou v. Republic (I984J on different counts, depending as they do upon the same basic ingredients, are so violently at odds that we see no alternative but to hold that the convictions on the second and third counts, notwithstanding the cogency of the evidence to which we have referred, must in the light of 5 the acquittal on the first count be regarded as unsafe and unsatisfactory". In R. v. Durante, [1972] I W.L.R.
3. Edmund Davies L.J. stated the following (at pp. 1616.1617): "One would have thought upon that material that if the 10 jury were going to convict at all they would say he clearly handled a cheque whichhe knew to be a stolen cheque, and then, having proceeded to fill it in and telling the publichouse owner that it was a cheque for his week's wages, he must also be guilty of attempting to obtain with intent to 15 defraud money upon that cheque. But they did not do that. They convicted on the handling chaige only. The verdicts accordingly are remarkably inconsistent However that may be, and whatever the explanation for thejury arriving at such conflicting verdicts, weare satisfied 20 that in the result the conviction of this man on the first count cannot be regaided as either safe or satisfactory. Accordingly, despite what many would regard as the clear evidence of guilt upon that count, we quash his conviction thereupon and allow the appeal". 25 In the present instance when each one of the three judgments which were delivered at the trial regardingthe issue of premeditation, is examined on its own it appears to have been based on a reasonable and carefully considered approach to that issue in the light of all the material aspects of the case as 30 a whole. When, however, the said judgments—and especially those of the two trial judges who found by majority the appellant guilty of premeditated murder—are compared to each other there clearly emerges such conflicting and divergent views regarding not only the issue of premeditation but, al-o, 35 in relation to other vital aspects of the case which are relevant to such issue, that I have, in the end, been left with the definite impression that, in effect, there are three judgments each one 206 2 C.L.R. Koufou v. Republic Triantafyllides P. of which, for reasons which conflict, and are not reconcilable. with those in the other judgments, finds that the appellant has killed his wife. In the light of the foregoing I have to treat as unsafe and un5 satisfactory the conviction of the appellant and I am, therefore, of the view that it ought to be set aside in the exercise of the powers vested in the Supreme Court, as an appellate tribunal, by virtue of section 145

(1)of the Criminal Procedure Law, Cap. 155, and section 25

(3)of the Courts of Justice Law, 1960 (Law 10 14/60). Inthis respect it isuseful to refer, too, to thefollowing passage from the judgment in the case of Zisimides v. The Republic,

(1978)2 C.L.R. 382 (at pp. 432-433): 15 20 25 "An examination of our own case-law discloses that convictions in criminal cases have been examined on appeal with a viewto deciding whether they were unsafe or unsatisfactory and had, therefore, to be set aside, even though the terms 'unsafe' or 'unsatisfactory' are not to be found. as such, in either section 145 of Cap. 155 or section 25

(3)of Law 14/60; this is so because it stands to reason that an unsafe or unsatisfactory conviction has to be treated either as being unreasonable having regard to the evidence adduced, or as entailing a substantial miscarriage of justice in the sense of section 145(l)(b) of Cap. 155, or as calling for the exercise of the wide powers conferred on this Court, on appeal, by means of section 25

(3)of Law 14/60". I have examined, next, whether or not it is in the interests of justice to order, on the present occasion, a new trial: In this connection i have borne in mind the relevant principles 30 as expounded in, inter alia, the cases of Pieridesv. The Republic,

(1971)2 C.L.R. 263, 273-276 and Kouppis v. The Republic,

(1977)2C.L.R. 361,391-392,and in the hereinafter cited English case-law: In Holder v. R., 68 Ci. App. R. 120, Viscount Dilhorne said 35 (at pp. 123-124): "No doubt the Court entrusted with the power to order a new trial will, when considering the exercise of its discretion, have regard to many matters, including the gravity 207 Triantafyllides P. Koufou v. Republic (1984 of the charge, the time that has elapsed since the alleged commission oftheoffence andwhetherit ispossibletohold a proper new trial were one ordered. As Lawton L.J. said in TURNEL [1975]61 Cr.App.R. 67,79: 'It isinthe interests of the public that criminals should be brought to 5 justice, and the more seriousthecrimesthegreater is the needforjusticetobedone'. InNIRMAL v. R. [1972]Crim. L.R.226 theJudicialCommitteedidnotuphold anorder for a newtrial madebytheFiji Court ofAppealwhen theonly object of the new trial would have been to have given the 10 prosecution an opportunity to make out a new case or to fill gaps in the evidence. In SAUNDERS [1973] 58 Cr. App. R. 248, Lord Widgery C.J. said at p. 255: ' it is not in the Court's knowledge that it has ever before been contemplated that a retrial should take place some 15 three and a half years after the original offence was committed. A delay of one year, perhaps two years, is not uncommon, but none of us can remember a case in whichit has been thought right to order a retrial after such a longperiod whenregard ishad tothefact that thisappel- 20 lanthasalready stood histrial once,and hasbeeninprison for a number of years and would, if a new trial is ordered, have to run the gauntlet and the hazards and prejudice of being tried, again'. Lord Widgery's observations were related to England. 25 In someother territoriesthe process ofjustice may operate more slowly". Also, in Au PutKuen v. Attorney-General of HongKong, [1979J 1All E.R. 769, Lord Displock stated the following (at pp. 770, 771-772, 773): "This is an appeal from an order of the Court of Appeal ofHongKongdated 17thFebruary 1977 wherebyitallowed the appeal of the appellant Au Pui-Kuen against his conviction ofmurderand(byamajority) exerciseditsdiscretion under s.83E(I) of the Criminal Procedure Ordinance to 35 order that the appellant be retried. The power to order a retrial when a conviction is quashed owesitsoriginnot to thecommon law of England but to the Indian Code of Criminal Procedure more than 208 30 2 C.L.R. 5 10 15 20 25 30 35 Koufou \. Republic Trianlaf) Hides P. a 100 years ago. A similar power, not always conferred by identical words, has subsequently been incorporated in the criminal procedure codes of many other Common­ wealth jurisdiction?, fn some, as was the case in Hong Kong before 1972, the power to order a new trial is unqua­ lified by any explicit reference to therequirements of justice; in some 'shall order' is substituted for 'may order' which appears in the Hong Kong Ordinance. In their Lordships' view these minor verbal differences are of no significance. The power to order a new trial must always be exercised judicially. Any criminal trial is to some degree·an ordeal for the accused; it goes without saying that no judge exerci­ sing his discretion judicially would require a person who has undergone this ordeal once to endure it for a second time unless theinterests ofjustice require it. So theamend­ ment to the Hong Kong Criminal Procedure Ordinance which inserted the express reference to the interests of justice did no more than state what had always been im­ plicit in the judicial character of the unqualified power to order a new trial conferred by the Indian Criminal Pro­ cedure Code and the pre-amendment terms of the Hong Kong Criminal Ordinance. The pre-amendment terms of the Hong Kong Ordinance were, in their Lordships' view, rightly construed in Ng Yuk Kin ν Λ 1 as authorising the ordering of a new trial only in cases where the interests of justice so require. The strength of the evidence adduced against the accused in the previous trial is clearly one of the factors to be taken into consideration in determining whether or not to order a new trial. At the one extreme it may be so tenuous that a verdict of guilty on that evidence would be set aside as unsafe or unsatisfactory under s 83(l)(a) of the Criminal Procedure Ordinance. In such a case the Court of Appeal would be exercising its discretion unjudicially if it ordered a new trial; for under the adversary system of criminal procedure which is followed in common law jurisdictions it would be contrary to the interests of justice to allow a new trial so as to give the prosecution a second chance 1.

(1955)39 Hong Kong LR 49. 209 1rianlafxtlides P. Koufou \. Republic

(1984)to get its tackle in order by adducing additional evidence. In the United Slates ofAmerica where new trialsin criminal cases are a commonplace a similar principle has recently been held by the Supreme Court of the United States to be applicable in both federal and state Courts: see Burks 5 v. United States1 and Greene v. Massey2. At the other extreme the evidence of the previous trial may have been sostiong that any reasonablejuiy if properly directed would have convicted the accused and that no miscarriage of justice had actually occurred. In such a 10 case instead of quashing the conviction and ordering a new trial the appropriate course would be to dismiss the appeal under the piuviso to s. 83

(1). Between these two extremes, however, there lies a whole gradation in the apparent ciedibility and cogency of the 15 evidencethat ha*,been adduced at thetrial rendered aborthe by some technical blundei of the judge. The strength or weakness of the evidence is a factor to be taken into account but It is only one among what may be many other factors: and if the Court of Appeal are of opinion that on 20 a prope; consideration of the evidence by the jury a conviction might result it isnot a necessary condition precedent to the exercise of their discretion in favour of odeiing a new trial that they should have gone further and reached the conclusion that a conviction on the retrial was 25 probable". Lastly in Reidv. The Queen,[1979]2 All E.R. 904, Lord Diplock said (at pp. 905. 907): "In this appeal brought by leaveof the Court of Appeal of Jamaica the appellant seeks to have set aside an order 30 of the Couit of 11th Maich 1977,whereby it oidered a new trial of the appellant on a charge of muider of which he had been convicted by the verdict of a juiy on his trial in the Home Circuit Court on 7th May 1976. Having reached, in their Lordships' view quite rightly. 35 ].

(1978)98 S^Ct

1. I. 98 Ct
2. 210 2 C.L.R. 5> 10 15 2& 25 30 35 40 Koufou v. Republic Triantaf)Hides P. the conclusion that the inconsistencies and gaps in the evidence of identity adduced at the first trial were such as to render any verdict of guilty against the appellant unreasonable or. in the words of corresponding provisions in other common law jurisdictions including England, 'unsafe or unsatisfactory', the Court in their Lordships' view ought not to have ordered a new trial in order that the Ciown should have another chance to fill the gaps. In doing so they erred in principle. The interest of justice that is served by the power to order a new trial is the interest of the public in Jamaica that those persons whoareguilty of serious crimes should be brought to justice and should not escape it merely because of some technical' blunder by the judge in the conduct ofthe trial orhiss u m m m g - u p to the juiy. There are, of course, countervailing interests of justice which must also be taken into consideration. The nature a n d strength of these will vary from case to case. Oneof these is the observance of a basic principle that underlies the adversary system under which criminal cases are conducted in jurisdictions which follow thepiocedure of the common law: it is for the prosecution to prove the case against the defendant. It is the prosecution's function, and not part of the functions of the Court, to decide what evidence to adduce and what facts to elicit from the witnesses it decides t o call. Incontrast thejudge's function isto contiol the trial, to seethat theproper procedure is followed, a n d to hold thebalance evenly between prosecution and defence during t h e course of the hearing a n d in his summing-up to thejury. He is entitled, if he considers it appropriate. himself t o put questions to thewitnesses to clarify answers that they have given to counsel for the parties; but he is not undei any duty to d o so,and where, as in the instant case, t h e parties are represented by competent and experienced counsel it is generally prudent to leave them to. conduct their respective cases in their own way. It would conflict with the basic principle that in every criminal trial it is for the prosecution to prove its case against the defendant if a new trial were ordered in cases where at the original trial the evidence which the prose211 I'ri;inl»(>Hides P. Koufou \. Republic

(1984)cution had chosen to adduce was insufficient to justify Λ com iction by any rctvenablejury which hadbeen properly directed. In such a case whether or not thejury's verdict of guilty wa-· induced by some mi.-.direction of thejudge at the trial is immaterial: the governing reason -why the 5 \c:dict must be ret aside is ih:it the prosecution having chosen to bring the defendant to trial has failed Ίο adduce sufficient evidence to justify convicting him of the offence with which ho has been charged. To order a new trial world be to «Jve the prosecution a second chance to make 10 good the evidential de'icicnciei in its case, and, if a second chance, why not a third? To do so would, in their Lord­ ships' view, amount to an e/ror of principle in the exeicise nf the powci undo;· :, 14

(2)of the Judicature (Appellate Jurisdiction» Act 1962V. 15 it is in the light of the relexant principles, which are expounded in the above case:., that Ifoimed the view that a new trial ought to have been ordered in the present case. H\DJI\N'.ST.\SSKHJ J.: The appellant. Geoighios Panaviotou Koufou. was convicted on the2nd May. 1979, of murdering his 20 wife Alecca G. Koufou. He was tiied in the Assize Court of Limassol and was sentenced to death by a majority verdict. The President of the Assize Court and Judge Pitsillides were of the view that premeditation had been established, but on the con­ trary Judge Artemis was of the opinion that theprosecution had 25 failed to establish premeditation. The appellant and the deceased who were 32 years and 23 years of age respectively, were married on the i8th Febiuaiy, 1972, and they had two children one 6 years and the other 11 months. The accused and thedeceased lived in their own house 30 in Limassol which was situated at No. Filikis Eteiias Street. In the morning of 21st August. 1978, a fateful day for the decea­ sed, she was found in the kitchen of her house almost dead. Her father, Theodosios Aleccou Theodosiou. who was living with his wife in the outbuildings of the house of the couple, was 35 awakened by a scream. Hewoke up his wife and in his under­ wear ran to the near verandah of the house. He pushed the door of the kitchen, but because it was secured from inside, he ran towards the children's bedroom window. He pushed the 212 2 C.L.K. Koufou \. Kcjxiblii' Hutljiiinusluisiou .1.. shutters in o;der to obtain access iiuo the house, but he did not manage to do so. Hethen rushed to the front door, and having enteicd the house, he went into the bedroom, where he found blood stains leading ail the way to the kitchen. In the kitchen 5 he saw his daughter Alecca. lying on the floor between the refrigerator and the door of the kitchen, opening to the verandah, wearing only her brassiere and pants. He saw a knife at a distanceofabout i ft from the deceased. Inthe meantime, when he unbolted the door, his wife entered into the room. He took 10 the knife, and as he did not find the appellant, he went outside the house in search of him. Having failed to find him, he called for help and his neighbour Nicos Georghiou and Siavros Dcmetriou arrived there. The deceased was wrapped in a bed sheet with the help of the 15 neighbours and was placed in the car of Gcorghiou in the rear seat with Stavros Demetriou. Upon their arrival at thehospital, she was examined by Dr. Anlonia Tsaparilla who certified thai Alecca was dead. The time was 5.00 - 5.15 a.m. The body of the deceased wastaken to the mortuaiy and kept 20 tuider police guard awaiting the arrival of Dr. Panos Stavrinos. The doctor examined the body externally first and later on he carried out the post-mortem examination. Finally he testified that her death was due to haemorrage due to a stab wound of the heart. 25 On thefollowing daythe appellant at about 7-7.15 a.m. of the 22nd August, 1978,visited the factory of a certain Amman and because he was absent he spoke to Socrates Christodoulou. the brother of Amman, and to another employee. He telephoned to Elli Potamitou, the mother-in-law of his brother Yiannakis 30 Panayiotou, and as a result later on he was picked up by both Panayiotou and Polemitou. They drove him to the police station and handed hint over to Chief Superintendent Polydorou at the Limassol Cential Police Station. Hewas arrested on the strength of a warrant which was issued earlier against him. 35 After his arrest he gave a statement tmder caution to Inspector Frangos. This statement which was intended to explain the reason why he had fled from his house that morning, and the reason whyhiswifehad committed suicide,asheclaimed, appear in his statement to the police, but I shall be referring to it later 40 on in this judgment. On the same day the police took his clo213 tfedjianaMassiou J. Koufou v. Republic ihes.consisting of his shirt, trouseis.vest, pants, socksand shoes for examination. They also took from him a sample of blood which upon examination it was found to be Group B. The shoes, socks, trousers and pants were negative in blood but the shirt and vest bore bloodstains which after examination were found to be of Group A, Rhessus positive.

(1984)5 On 15th September.

1. he was formally charged and his reply was a denial that he had killed his wife. The case for the prosecution was that the stab wound which caused the death of the deceased was inflicted by the appellant 10 with premeditation and because he was in love with another woman. On the contraiy. the case for the defence was fought and argued mainly that the wound was self-inflicted by the deceased and that she committed suicide because she was jealous of her husband having a mistress; and that even if the trial 15 Court were to find that it was the appellant who stabbed the deceased, again premeditation had not been established by the prosecution. The trial Court fully aware of the importance of the two points raised by the prosecution and the defence, proceeded and heard evidencefrom Dr. Panos Stavrinos, a qualified 20 pathologist; and from Professor Keith Simpson of London for the prosecution. The defence called Dr. Doritis a psychiatrist in private practice in Limassol since 1973 and who also worked on a part-time basis in the Hospital of Limassol. The defence called also Antonis Koutselinis from Greece, a graduate 25 of the Medical school of Athens since
2. He was also a specialist in Forensic Medicine and Toxigology of Forensic Pathology for about twenty years. The president of the Court in dealing first with the evidence of Dr. Stavrinos who carried out the post-mortem examination 30 on the dead body of the deceased Alecca and who ceilified that her death was due to haemorrage due to a stab penetrating wound, recorded his evidence in these terms:"(I) The track of the penetrating wound was straight and oblique in direction from the left side of the victim to- 35 wards the right side and with a slight inclination from down upwards and inwards; it extended within the chest cavity. The wound penetrated the muscle of the right ventricle of the heart and communicated with the 214 2 C.L.R. Koufoa ι. Republic Hadjianastassiou J. cavity of the right ventricle without lacerating the poste­ rior muscles of the ventricle; the length of the wound on the right ventricle was I 1/2 cms. 5

(2)The left lower margin of the body of the sternum was fractured andtiny bonefragments were missing and found embedded in the muscles of the vicinity internally.

(3)The pericardium was torn and the pericardial sac was full of clotted blood measuring 500 mis. Also the chest cavity contained I litre of clotted blood. 10 15 20 25 30 35

(4)Otherwise all other internal organs appeared to behealthy and without abnormalities." In addition Dr. Stavrinos was of the opinion that the stab wound was caused by a sharp bladed instrument and that the knife found was such an instrument and could have caused the said stab wound. In the opinion of the doctor the wound was homicidal and not suicidal for the^e reasons:

(1)The knife penetrated with force and proof of this was the fact that the edge of the body of the sternum was fractured and bone frag­ ments were found embedded in the muscles of the vicinity, as well as thepresence of haematoma and bruising of thesurround­ ing muscles.

(2)There was only I stab wound with clean-cut edges.

(3)Thestab wound was on thechest wall andthedoctor explained that suicides do not usually select parts of the body where there are underlying bones but soft parts with no sucli bones.

(4)There were "protective" or "defensive" injuries, to wit, the incised wound in the left palm and the scratches on the left wrist, most probably caused by finger nails. Then Dr. Stavrinos in explaining the opinion hv put foiwa'd, he testified that the force required to inflict such a wound to such a depth and,in particular, causing a fracture of thebody of thesternum, was such as it could not have been self-inflicted. He further stated that had it been a case of suicide he would have expected to find tentative wounds, i.e., wounds which were not vital or fatal wounds inflicted before the fatal wound. Finally on this issue Dr. Stavrinos added:"In cases of suicide the edges of the wound are twisted or ragged because the knife enters slowly into the body. Fur­ ther, he said that the existence of what he termed 'prote­ ctive' wounds suggests that they were caused in an attempt 215 Itudiianaslaisiou J. Koufou \. Republic

(1984)by the victim to ward off an attack by an assailant, but in cross-examination he conceded that the incised wound in the palm could have possibly been caused accidentally whilst the deceased was pullbig the knife out of her body." in cross-examination, when it was put to this witness that the 5 wound found on the body ofthedeceased couldhave been caused by the latter holding the knife against the mattress, and failing on it with great force, his reply was that that would not have caused an injury similar to the wound in question because the tract was oblique which meant that the person committing HI suicide must have been holding the knife obliquely, a fact that would not deprived the blow of the necessary force. Indeed. Dr. Stavrinos added that he -would not expect to find the bruise and the haematoma of the surrounding tissues and muscles nor the fracture of the sternum. The President, having in mind 15 that part of the cross-examination added that in effect his whole answer was that the force applied in such a manner would have fallen short of the force required to cause thewound in question. Indeed, he added, he also excluded the possibility of the wound having been caused by a fall on the floor by the deceased while 20 she held the knife against her chest. There was further evidence for the prosecution and Professor Keith Simpson whose assistance the Cyprus Police enlisted in October 1978, with some forty years experience, expressed the opinion that the facts put to him are evidence raising a very 25 strong presumption that the stab wound was homicidal and not self-inflicted. That kind of evidence, led him to the conclusion that it was a homicidal wound and his conclusion was based on these factors:- (I) The rarity of self-stabbing in women. He further stated that he had looked into his records for the last 30 ten years and he had not had one case of a woman stabbing herself.

(2)The situation of the wound. In the witness's experience, as he has testified, it iscommon to find stab wounds diiected at the heart through the pit of the stomach where the heart is felt beating and where there is no resistence to a wound 35 directed in that sort of way. in effect because of the absence of underlying bones.

(3)The absence of tentative cuts. The wound was unaccompanied by any tentative pricking of the skin or tentative cutting anywhere else, something common in suicides. Hestated that it iscommon for suicideswhether bycutting 40 216 2 C.L.R. 5 10 15 20 25 30 Koufou t. Republic Hadjianastassiou .1. or by stabbing, to make feeling movements, tentative cuts or feelers, to locate the knife in the right place. This wound he said had no such marks.

(4)The character of the wound. It is a clean, straight, penetrating wound with one slit entry which isnot rocked passingstraight into theheart at an angle to a considerable depth.

(5)The force used to inflict the wound. The witness explained that the fracture ofthe left lower margin of the body of the stemum indicated that very considerable force was applied. He clarified that the stemum is dense and tough and it isexceedingly difficult to press a knife through it. From his experience when he performs post mortem examinations he has to usea sawto cut through it. Hefurthei testified that bearing in mindthedirection ofthewound asput to him and thenecessary force required to fracture the stemum on the assumption that the victim was right-handed, he considered the possibility of self-inflicting such a wound by any person, let alone a woman, to be quite untenable.

(6)The slit of the brassiere. The witness said that assuming that the slit on the brassiere was caused by the knife at the time of the infliction of the wound, which in his opinion was the reasonable inference, then this was another factor advocating against self-infliction of the wound. As he explained, from his experience, in cases of suicide the clothing is pulled a>ide or is pulled down almost always, though not necessarily always so. whereas in homicidal cases the body is taken as it is,i.e., dressed or undressed.

(7)The existence of the incisedwound on the left palm ofthe deceasedwhichthe professor described as a "protective" or "defensive" wound as well as other minor injuries, i.e., scratches on the left wrist, though he conceded that this need not have necessarily been caused at the time of the stabbing. In cross-examination it was suggested to this witness that the stab wound on the deceased would have been also the result of self-infliction if the knife was either placed against the mattress and the deceased thiust her body against it or if the deceased. 35 holdingthe knife onher chest, fell either accidentally or purposely on to the floor. The President in dealing with the first suggestion put to Professor Simpson said that the witness was positive in his opinion that such a wound could not have been caused in such a way for the amount of force necessary was far 40 greater than would result if the wound was inflicted in such a manner. Regarding the second possibility of falling on to the 217 Hadjianastassiou J. Koufou v. Republic

(1984)floor, he added, the witness said that this was conceivable, provided that a number of unusual conditions existed and particularly that the deceased bycoincidence happened to fall in that position on the floor quite cleanly, without rolling in any way. Any degree of Tolling,he said, would have caused rocking of the 5 knife in the wound thereby causing the slit of the wound to be twisted, ragged or torn. Then the witness dealing with the incised wound found in the left palm of the deceased, he conceded in cross-examination that it was possible for the wound to have been caused while the 10 victim was pulling the knife out of her body, although he would have thought that it would be natural to withdraw a knife with the hand on a safe part of it and not by the blade. He went on to add that ifthe knife wasgripped to pull it out hewould expect the cut to be deeper than if merely the knife had passed by it. 15 Finally Dr. Simpson summed up his views in re-examination and he isrecorded as statingthat he came to the conclusion that the wound was homicidal and not suicidal for the following reasons taken collectively:"(l) On the rarity of self-stabbing in women. 20

(2)On the situation and character of the wound, whichisnot in the pit of the stomach but set at the edge of the breast bone and passing through it, a condition requiring great force.

(3)On thefact that it isa clean, straight, penetratingwound, 25 with one slit entry, which is not rocked, passing straight into the heart to a considerable depth.

(4)On the fact that it is unaccompanied by any tentative pricking of the skin