1984 November 28 [L. Loizou. HADjiANASTASSiou AND DKMETRIADCS. JJ-] PAWKK.OS A. TSfNGTS, Appcltuiii. v. THE POLICE. Respondents. (Criminal Appeal No. 4!42). 5 10 15 20 Criminal Law—Evidence—Failure of accused to give eviditier in his own defence—Comment by Judge—Who wasclearly iitf/miucit by (hisfact inhis evaluation of the <yid:nce—Nota case inwhich flipproviso to section \45(\)(
- b)of the Criminal Procedure Law. Cap. 155 may be properly applied—Conviction aitd sentence set aside. in the course of his judgment when dealing with the evidence before him and the credibility of the witnesses the trial Judge commented* on the appellant's failure to give evidence on oath. Held, that although there was a strongish case against the appellant his conviction should be quashed on the ground that the trial Judge went too far by way of comment on his failure to give evidence on oath; and that he was clearly unduly influenced by this fact in his evaluation of the evidence adduced: that, in all the circumstances, this is not a case in which the proviso to section 145(i)(
- b)of the Criminal Procedure Law, Cap. 155 may be properly applied; and that, accordingly, the appeal must be allowed and the conviction and sentence be set aside. Appeal allowed. The' comments appear at pp. 417—418 post. 413 Tsingis v. Police <I984) Cases referred lo: R. v. Pratt [1971] Crim. L.R. 234: R. v. Bathurst[1968] I All E.R. 1175 at p. 1178; Themistotieom v. Police
(1981)2 C.L.R. 200. Appeal against conviction. 5 Appeal against conviction by Panikkos A. Tsingis who was convicted on the 17th May, 1980at the District Court of Nicosia (Criminal Case No. 392/79)ononecountof theoffence of driving without due care and attention contrary to sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 10 86/72) and on one count of the offence of failing to stop at the scene of an accident contrary to regulations 60
(1)and 71 of the Motor Vehicles Regulations, 1973 and was sentenced by Stavrinides, D.J. to pay £25.- fine on the first count and £10.fine on the second Court. 15 E. Vrahitni (Mrs.), for the appellant. A. M. Angelicas, Senior Counsel of the Republic for the respondents. Cur. adv.vulf. L. Loizou J. read the following judgment of the Court. 20 The appellant was convicted by the District Court of Nicosia on a charge containing two counts: (a) For driving a motor-vehicle on a road, without due care and attention, contrary to sections 8and 19of the Motor Vehicles and Road Traffic Law, 1972 (No. 25 86 of 1972); and (b) for failing to stop at the scene of the accident contrary to regulations 60
(1)and 71 of the Road Vehicles Regulations
- He was sentenced to pay a fine of £ 2 5 on the first count and £10.- on the second and in 30 addition he was ordered to pay £ 1 6 - costs of theprosecution. The accident occurred on ihe 30th October, 1978, at about 5.30 a.m. at Gregoris Afxentiou Street at Ayios Dhometios 414 2 C.L.R. Tsingis v. Police I.. Loizoti J. near thejunction formed by that street and Krisou and Emperor Theofilou streets. 5 10 15 20 25 30 35 40 The complainant, P.W.4, Eleni Zanettou, was walking along the street from the direction of Nicosia towards Morphou keeping well to her left-hand side of the road. While she was so walking she was knocked down by a car which was being driven in the same direction. Very near the scene there happened to be standing at. a bus stop, about forty feet from the point of the accident, two national guardsmen who were waiting for a bustotake them totheir units. They were, P.W.2, Andreas Georghiades and P.W.3, loannis Ktenaris, who, after the accident occurred, informed the driver of a passing car, who happened to be a policeman, of the accident, and he, in his turn informed the police and an ambulance and as a result an ambulance arrived shortly and removed the injurred woman to the hospital and soon after that at about 6.10 a.m. the Investigating Officer, P.W.I, P.C. 2796 Gcorghios Trisselliotis, arrived. at the scene. This witness siatcd in evidence that from information given to him by P.W.2 and P.W.3 he prepared a sketch. exhibit 2, on which he marked the point of the accident and the point where hefound a pool of blood; these two points were about forty-four feet apart. He also stated that from information given to him by the two national guardsman relating to the car winch caused the accident hoascertained that the vehicle involved in the accident belonged to the appellant and on the sameday he visited hishouse but did not find him at home. On the 1st November, at about 6.00 p.m., he again visited the house of the appellant and found him in. He informed him of the reason of his visit and after cautioning him he requested him to allow himto examine hiscar. Theappellant gave his consent and the witness did examine hiscar but found no damage on it. Then hetook a voluntary statement from him which he produced asexhibit
- The witnessfound nothing at the scene to indicate how the complainant came to fall at the point where the blood was found but agreed in cross-examination that assuming the car was going at a high speed and the collision was a violent one the victium could have been thrown at such a distance but that in such a case he would expect to find some sort of damage on the vehicle. He also agreed that even if the impact was not violent but the vehicle was going at some speed and as a result of the impact the victim was lifted on its bonnet and was carried 415 1,. Loizou J. Tsingis v. Police (f9X4) at that distance he would certainly expect to find some sort of damage on the bonnet, but added, that two days had elapsed before he examined the car. P.W.2, Andreas Georghiades, stated in evidence that he witnessed the accident and that at that time it started todawn 5 but he could not remember if the street lights were still on; but, nevertheless, he said, that he was in a positionto seewelt even without the street lamps. He saw a car being driven behind the victim with its lights on and realized thatanaccident would happen. When the vehicle was very near the woman it sud- 10 dently swerved to its offside but it was too late and it hit her with its front left-hand side approximately with its left-hand corner. As a result of the impact the complainant lost her balance and staggered before falling on the ground and the car accelerated. He paid no more attention to the woman at that 15 moment as hestepped forward and went into thestreet and after he did so he saw that the car was a Rover, coloured white and registration number was EZ
- He saw the registration number from the rear number plates. He immediately called out to his companion and asked him to notice the registration 20 of the car himself also. The witness explained later that he did not see the woman actually falling on the ground but that after the car left the scene he saw her lying on the ground. P.W.3, Ktenaris, on the othei hand, stated in evidence that he was together with P.W.2 standing at the scene wailing 25 for the bus but apart from hearing a knock he did not witness the accident. However, after the previous witness called out to him, he tried to notice the registration of the car but all he managed was to see the registration letters EZ. He was not in a position to say anything about the registration numbers, 30 the colour or the make of the car because in the meantime the car had covered some distance. The witness was present when P.W.I was taking measurements but except from particulars regarding themselves he did not ask them anything else, he said. The complainant, P.W.4, apart from the fact that she was 35 knocked down whilst she was walking on the left-hand side of the asphalt wasnot ina position to sayanything elsebecause the next she knew was that she was in hospital. At the close of the case for the prosecution theaccused, when 416 2 C.L.R. Tsingis v. Police L. Loizou J. called upon, elected to make a statement from the dock and he adopted the statement he had made to the police, exhibit
- Briefly his statement was to the effect that he was the owner of the vehicle under registration No. EZ 60, a Rover,- coloured 5 white. That although other persons used to drive his car also, on that particular day he was driving it himself in order to go to his business at Tseri. He started from his house at about 6.00 a.m. and although on his way he drove on part of the street where, as it was explained to him, the accident occurred he did 10 not pass from the scene because he had to take a turning into a side street to his left about a hundred or a hundred and fifty metres before the scene. He was not involved in any accident, he stated, and he had not heard about this accident until the police visited his house and informed him about it. 15 The learned trial Judge in the course of his judgment when dealing with the evidence before him and the credibility of the witnesses and after citing some authorities, made the following comments with regard to the appellant's failure to give evidence on oath in his own defence: 20 " Έν όψει των ανωτέρω θεωρώ 6 κατηγορούμενος δια της μή προσελεύσεως τούτου είς τό εδωλίου τού μάρτυρος ίνα δώση ένορκου μαρτυρίου καΐ υποστεί άντεξέτασιυ ύπό της Κατηγορούσης 'Αρχής άυαφορικώς προς τά γεγονότα της υποθέσεως άλλα ή έκ τοϋ ασφαλούςκαι έκ τού εδωλίου τού κατηγορουμένου γενομένης δηλώσεως αύτοϋ ύποδηλοΐ ότι τό πρόσωπο τούτο ήθελε να απόκρυψη γεγονότα καΐ δέν έπεθύμει όπως θέσει τόν εαυτόν του είς δύσκολου θέσιυάυαφορικώςπροςτά γεγονότααυτά καινάύποστη άντεξέτασιυ". 25 30 35 (In the light of the above I consider that the accused by not coming to the witness-box to give evidence on oath and be subjected to cross-examination by the prosecution in relation to the facts of the case and in electing to make a statement in safety from the dock shows that this person wanted to conceal facts and did not wish to put himself in a difficult position in relation to such facts and be sub jected to cross-examination). and further down "Μετά άπόπροσεκτικήνμελέτηυκατέληξαείςτόσυμπέρασμα Οτι ο! μάρτυρες κατηγορίαςίίλεγον την άλήθειαυκαΐ έδωσαν 417 I.. Loizou J . Tsingis v. Police 0984; είς άμε την έντύποοσιν προσώπων είλικριυών και φιλαληθών καΐ ώς έκ τούτου αποδέχομαιτήυ μαρτυρίου αυτών έυ άυτιθέσει προς τον κατηγορούμευου Οστις έζήτησεν όπως παραμείνη είς ασφαλήθέσιν ήτοι το έδώλιον τοΰκατηγορουμένου χωρίς νά θέση ύπό την δοκιμασίαυ της άυτεξετάσεως το αληθές τής αναφερθείσης εις τήυ κατάθεσιυ αϋτοΰ ήτοι τό τεκμηρίου 1". 5 (After a careful study I have come to the conclusion that the prosecution witnesses were telling the truth and gave me theimpression of sincere andtruthful persons andas a 10 result Iaccept their evidence unlike the accused who sought to remain in a safe place, that is to say, the dock, without putting to the test of cross-examination the truth of his statement exhibit 1). The appeal against conviction was based on several grounds but the main force of the argument was directed against the comment made by the Judge. 15 The question of comment by a Judge on an accused person's failure to testify at Ms trial has been considered in a number of cases. In R. v. Pratt [1971] Crim. L.R. 234 the Judge's 20 comment to the jury on the accused's failure to give evidence was in these terms: "You might have thought that Ρ would have gone into the witness box and told you what he had been doing and ex plained (his actions) —and seen fit to give his version 25 on oath and to allow you to have the opportunity of seeing him cross-examined so that you could assess his evidence He has not chosen to do so. So you have not heard from Ρand he has not seen fit to answer the evidence in this case. It is a matter for you as to what inference 30 you draw". The Court thought it right to quash the conviction on the ground that the Judge went too far by way of comment on the failure of the accused to give evidence. The effect of it was plainly to suggest to thejury that they could draw the inference 35 of guilt because he did not give evidence. In P. v. Bathurst [1968] 1 All E.R. 1175, Lord Parker C J . had this to say at p. 1178: 418 2 C.L.R. 5 Tsingis v. Police L. Loizou J. "Then, as it is well known, the accepted form of comment is to inform the jury that, of course, the accused is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that, while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing thai they must not do it to assume that he is guilty because he has not gone into the witness box". In Themistocleous v. The Police
(1981)2 C.L.R. 200 the 10 trial Judge in commenting on the failure of the appellant to give evidence in his own defence, said that, by electing to make an unsworn statement from the dock the appellant showed that he was not telling the truth and intended "to take refuge in the dock" in order not to expose himself to "the fire of cross15 examination"; and even though the Court of appeal set aside the conviction on another ground they dealt with this issue also and observed that they would be prepared to set aside the conviction for this reason too. In the present appeal, having given the matter our best con20 sideration in the light of the above, we are of the opinion that although there was a strongish case against the appellant, his conviction should be quashed on the ground that the learned trial Judge went too far by way of comment on his failure to give evidence on oath; and that he was clearly unduly influenced 25 by this fact in Ins evaluation of the evidence adduced. Nor do we think that, in all the circumstances, this is a case in which the proviso to s.l45(l)(b) of Cap. 155may be properly applied. In the result this appeal is allowed and the conviction and 30 sentence are set aside. Appeal allowed. 419