2 C.L.R. 1987Apnl13 [TRIANTAFYLLIDES Ρ L0R1S STYLIANIDES JJ 1 ANDREAS N1COLAOU, Appellant, ν T H E REPUBLIC, Respondent (Criminal Appeal No 4806) Appeal— Criminal Appeal— Calling a witness who testifiedatthetnal forgiving further evidence and in effect falsify the testimony he gave at the tnal — Principlesgoverning thepower oftheAppellate Court toallow sucha course 5 10 The appellant wasconvicted,on 17June 1986 ofthe offenceofincest with hisdaughter filedthisapplication forleave tocall hisdaughter asawitness in order to testify further and in effect to falsify the evidence which she has given at his tnal Held dismissingthe application (1} In delaing with an application suchas thepresentone theappellatetribunalcfcesn c decidewhether theevidenceto be adduced before it is true but it onl' enquires whether such evidence is credible oi,its f a c or capable of be..^ believeH
(2)In the circumstances of this case this Court is not at all satisfied that the new version of the complainant is either credible on its face or capable of being believed 15 Application dismissed Cases referredto Anstidou ν The Police
(1973)2 C L R 244, Zevedheosv TheRepublic
(1978)2 C L R 47, R ν Flower,50 Cr App R 22 20 Application. Application for leave to call the daughter of the appellant as a witnessinordertotestify further and falsify the evidencewhich she had given at the tnal 251 NlcoUou v.Republic
(1987)A. Andreou, for the appellant. A. M. Angelides, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. TRIANTAFYLUDES P. gave the following judgment of the Court. The appellant was convicted, on 17 June 1986, of the offence of incest with his daughter, Eleni Nicolaou, and was sentenced toseven years' imprisonment. 5 On 4 October 1986 the said daughter visited counsel who is appearing today for him, but who did not appear for him at the 10 trial, and gave a written statement, which she signed, declaring thatherevidenceatthetrialwasfalse and thatshe had implicated her father because of feelings of revenge for his attitude towards her. Asaresultwehavenowbefore usanapplicationforleavetocall 15 thedaughteroftheappellantasawitnessinordertotestify further and,ineffect, tofalsify theevidencewhichshehasgivenatthetrial of the appellant. This application has been opposed by counsel appearing forthe respondent. There were cited to usbycounsel thecasesof Aristidou v. The 20 Police,
(1973)2 C.L.R. 244, and Zevedheos v. The Republic,
(1978)2C.L.R.47.IntheZevedheoscasethisCourtreferred,with approval, tothejudgment of Widgery J., as he then was,inR. v. Flower, 50 Cr. App. R. 22, from which itappears that in dealing with an application such asthepresent one the appellate tribunal 25 does notdecide whether the evidence to be adduced before itis true but itonly enquires whether such evidence iscredible on its face orcapable ofbeing believed. Inthe present instance thereappears from the record before us that the appellant hasconfessed tothecommission ofthe offence 30 of which he was convicted and his confession was accepted as voluntary and true by the trial Court and formed part of the evidence on which hisconviction wasbased. Also,thetrialCourt received in evidence complaints of the complainant to other persons as supporting theveracityof herstoryagainsther father. 35 The possibilitythatshe was testifying against himand implicating him due to motives of revenge against him wasput to herat the trialbutshedenied itand insistedthatshewastellingthetruth.The 252 2C.L.R. NlcoUonv.RrpnMjr TriurtafvUkle*P. complainantdid notrecant immediately after thetrialand she did not go tothepolice to retract herstatementagrjnst her father, but about four monthslatershe volunteered togiveastatementtothat effecttocounsel fortheappellant;andunlikewhΜwasdoneinthe 5 Flower case, the present application is not supported by an affidavit ofthecomplainantretractingherevidence before thetnal Court In the light of all relevant considerations, we are not at all satisfied thatthe new version of the complainantis either credible 10 on its face or capable of being believed We think that it is a concocted afterthought and apparently she was instigated by others togo tocounsel for theappellant and put forward her new story We, therefore, have decided not to grant leave to call her as a 15 witness before usandtheapplicationwhich hasbeenmadeforthis purpose ishereby dismissed Application c/ismissed 253