clr/1986/1986_2_185.pdf

(1)The credibility of the witnesses is within the province of the trial Court. If on the evidence it was reasonably open to it to make the findings at which it arrived, this Court will not interfere, unless the inferences drawn from such findings were not warranted, whereupon this Court is in as good a position as the trial Court to draw its own conclusions from the primary facts. In this case the appellant failed to discharge the burden cast upon him.

(2)Appellant's complaint 185 that the trial Judge did Christoforou v. Police

(1986)not direct his mind properly to the mens rea required for the said offence is not warranted. Appeal di&mi&sed. CHM referred to: Makki v. The Republic

(1972)2 CX.R. 76; 5 Anastassiou v. The Republic

(1972)2 C.L.R. 121. Appeal against conviction. Appeal against conviction by Georghios Demetri Christoforou alias Kkeles who was convicted on the 30th July, 1986 at the District Court- of Famagusta (Criminal 10 Case No. 3742/85) on one- count of the offence of possessing cannabis resin contrary to the provisions of the Narcotic Drugs and Psychotropic Substances Law, 1977, (Law No. 29/77) and was sentenced by Eliades, D. J. to six_ months' imprisonment. 15 P. Angelides, for the appellant. A. hi. Angelides, Senior Counsel for- the respondents. of the Republic, TRIANTAFVLLIDES P:: The judgment of the Court this appeal will be delivered by Loris, J*. on 20 LORIS J.: The present appeal is directed against the conviction of the appellant by a Judge of the District Court of Famagusta sitting at Paralimni*. (CriminaJ case No. 3742/85) on a single count of possession of 0.680 gr. of cannabis resin contrary to· the- provisions of the 25 Narcotic Drugs and; Psychotropic Substances Law 1977 (Law No. 29/77). The- salient, facts of this case are very, briefly as follows: On 28.5.85 at about 6.00 p.m. at Ayia Napa, a police squad consisting of six policemen dressedjn. mufti, patrolling in three police cars intercepted the, appellant,who was,driving motor car under Reg. No. KU' 797; one, of the cpnstables P. W. 2_alighted from his car signajling: to appellant- to stop. 186 30 2 C.L.R'. 5 CKristoforou ν: Police Loris J' The appellant initially reduced the speed of his vehicle giving"the impression that He was* about to"come to"1a stand-' still but suddenly He accelerated1 driv-rig towards the ;eushore. The' Policemen' chased' himi and/ when they were' near to him the appellant stopped his^car,. opened· the" door thereof and attempted' to' run· away. The' policemen ran after him1 and tHey fired two warning snot's before they arrested him. Police Sgt. Eracleous searched' the vehicle of- the 10 accused in" his presence and found· a- small quantity of brown substance which, was later, after" analysis, proved* to^ be cannabis resin;' on tieing asked by tnis- witness appellant replied'«εν ηΕέρετε εοεία nou' το· εβάΧέτε, εν χασίσι» Some time later flat No'. 326 at Ayia Nap?, where" the' appellant was staying on'occasions, was searcned* with his consent' in" the1 presence of- Police" Inspector Miller.* Sergeant Eracleous, Police Constable" Demetriou1 (P\W. 6V and Police' Constable* Cnristoforou (PtW. 5):- When' aslced* the anpellant' p'ointed' out to' the1 police* the* room' in' which120' he' was staying' as' well· as- the* Bedstead1 on' wh;cH! he" was sleeping". WHilsf P^W.5' was raisin'g-up* trie~ BedsHeef ofthe-bedMndtcated-py—tne-appeHantU.al-brbwnLs.ubs_tance' fell* from- the bed* sheet· on-the bed'. When' this· witness called' Inspector' Miller the' appellant1 started1 shoutTn'g" again that' 25' the brown' suBstance' was placed^ on1»His" bed" By the* Police". 15 BbtH Brown" sutistances* found1 as aforesaid4, in the" vehicle* of tHe'appellant and» on' His"Bedstead;- were1 analysed' by" trie' Go\crnmenf Analvstf and^ tHey' were" proved? to Be cannabis resirf ThV weiglif of" BotH" pieces· is* Ο'δδΟ^ grams 30 ^5 Twelve witnesses were called' by the prosecution. When tHe accused* was called' upon' to defend Himself· he elected' 1 and in- fact gave' evidence on" oatH: fto witnesses- were called' By the1 defence". The version"1 of- tHe appellant was· that He did' riot understand wHo were tHe persons' whbv attempted' to"' stop" Him. as tHe policemen were' iri muftr and he* was frigtitene'd' owing! to- tHe fact* tHat' tHey we're" armed! He" denied» tHatf 187' Loris J. Christoforou v. Police

(1986)he had any quantity of cannabis resin either in his vehicle or in his room. He maintained that on both occasions the cannabis resin was placed in his vehicle and on his bed respectively by the police. The learned trial Judge accepted in toto the evidence adduced by the prosecution and feeling satisfied beyond reasonable doubt that the case for the prosecution was proved, convicted the appellant as charged. 5 The trial Judge rejected the version of the appellant giving his reasons for so doing, which appear on record 10 and we do not intend repeating. The present appeal turns mainly on the issue of credibility. It was stressed by this Court time and again that the credibility of the witnesses is within the province of the 15 trial Judge who has the opportunity of hearing the witnesses and watching their demeanour in the witness box. If on the evidence before him it was reasonably open to him to make the findings to which he arrived at, then this Court will not interfere unless the• inferences drawn 20 therefrom are not warranted by the findings, whereupon this Court is in as good a position as the trial Court to draw its own conclusions from the primary facts. Having considered the submission of counsel, in the light of the record and the judgment of the trial Judge, we 25 are not satisfied that the appellant has discharged the burden cast on him to persuade this Court that the trial Judge went wrong in evaluading the evidence before him. The inferences drawn by him were reasonably open to him; and we may even go further and say that the infe- 30 rences drawn by the trial Judge were the only inferences that could be drawn unequivocally from the primary facts proved. In our view the conduct of the appellant at, and immediately after, his interception by the police coupled with his conduct at the time of the discovery of the cannabis resin in his vehicle and on his bed during the police search "warranted an inference of guilt which, in the absence of 1M 35 2 C.L.R. Christoforou v. Police Loris J. any other evidence that might create some doubt in the inind of the trial Judge, warranted his conviction with the certainty required in a criminal trial" (Makki v. The Re­ public

(1972)2 C.L.R. 76 at p. 80). 5 10 15 20 Learned counsel for appellant submitted further that the trial Judge did not direct his mind properly to the mens rea required for the offence with which we are concerned. Having gone through the judgment of the Court below we find ourselves unable to agree with this submission of counsel as well. The learned trial Judge has properly directed himself on this issue as well. He referred amply to the authorities settling that mens rea is required for offences of this na­ ture (Anastassiou v. The Republic

(1972)2 C.L.R. 121 and Makki v. The Republic (supra) ) and has clearly stated the facts and his inferences establishing mens rea in the case under consideration. And we must say that we are in agreement with him. For all the above reasons the appeal fails and is missed accordingly. dis- Aρpeal dismissed. 189