2C.L.R. 1987 March17 (TRIANTAFYLUDES,Ρ,DEMETRIADES LORIS JJ ) ANDREAS NEOFYTOU ONISiFOROU, Appellant. ν THE POLICE, Respondents (Cnminal Appeal No 4798) Evidence— Cnminalevidence— Corroboration—Lies toldby theaccusedto the Police— Thecaselawon the subjectwhetherand m whatcircumstancescan be treatedascorroboration of other evidence 5 10 Evidence — Cnminaievidence— Unswornstatementfromthedock — TnalJudge descnbed itasevidenceandstatedthattheappellantmade apoorimpression on him — Such statement isnot evidence inthe stnctsense — Inthiscasethe malJudge unduly treatedthefalsityof thestatementasan element againstthe accused Appeal — Credibility of witnesses— Instance when reversal of a finding as to credibility is justified This appeal isdirected against the conviction of theappellant for rape of a cabaret artiste from Colombia 15 The trial Judge treated as reliable the evidence of the complainant and, moreover, found that such evidence was corroborated by the fact that the appellant, when arrested, told liesto thepolice and by the fact thathe,also, told liesinhis evidence before thetnalCourt It must be noted that the appellant did not give evidence at his tnal, but elected tomake an unsworn statement from the dock 20 25 Held, allowingthe appeal
(1)By attributing the status of evidence tothe unsworn statement of the appellant from the dock and by stating that the appellant made a very poor impression to him, the trial Judge has unduly treated thefalsity of the unsworn statementfrom thedock of theappellant as an elementagainst htm, thusrendennghisconviction unsatisfactory
(2)The evidence of the complainantwas notreliable Itis, in this respect, ' sufficient topointoutthatinher evidence she relates conversations with the appellant even though it is indisputable that the appellant does not 261 Onisiforou v. Police
(1987)understandSpanishandthecomplainantspeaksonlySpanish;andwhatthey were sayingallegedly to eachother ismost materialasregardstheversionof theappellantthatwhatevertook placebetweenhimandthecomplainantwas with her consent.
(3)Inthelightofthecircumstancesofthiscaseandofthecase-lawitwasnot 5 safefor thetrialCourt totreat,inageneralandsweepingmanner, allliestold bytheappellant to thePoliceasamountingtocorroborationofthe evidence of the complainant. Appeal allowed. Conviction quashed. 10 Casesreferred to: Anastassiadesv. TheRepublic
(1977)2C.L.R. 97: Economides v.Zodhiatis, 1961C.L.R. 306; Foumaris v. TheRepublic
(1978)2C.L.R. 20; Katsiamalisv. TheRepublic
(1980)2C.L.R. 107; 15 R.v.Lucas [198112All E.R, 1008; R. v.Dowley [1983] Crim.L.R. 168; R.v. West[1984] Crim.L.R. 236; R. v.R. [1985] Crim.L.R. 736; Nicolaou v. ThePolice
(1978)2 C.L.R. 60; 20 Khadarv. The Republic
(1978)2C.L.R. 178; Zisimides v. TheRepublic
(1978)2C.L.R. 382; Styiianou v. TheRepublic
(1979)2C.L.R. 109; Ceorghiades v. ThePolice
(1981)2C.L.R. 155. Appealagainstconvictionandsentence. Appeal against conviction and sentence by Andreas Neofytou Onisiforou who wasconvicted on the 24th October, 1986at the District Court of Limassol (Criminal Case No. 21861/86) on one count of the offence of rape contrary to sections 144and 145 of the Criminal Code Cap. 154and wassentenced by Eieftheriou, 30 D.J.to fifteen months' imprisonment. Chr. Pourgourides, for the appellant. St Theodoulou, forthe respondents. 262 25 2 C.L.R. Onisiforou v. PoHce TRIANTAFYLLiDES P. gave the following judgment of the Court. The appellant was convicted of the offence of rape committed on22July 1986,atLimassol,byhavinghad unlawful carnalknowledge ofacabaret artistefrom Colombia, without her 5 consent, and wassentenced to fifteen months' imprisonment. ThelearnedtrialJudgedecidedtotreatasreliablethe evidence of the complainant and found, also, that it was corroborated by other evidence adduced atthetrial,aswellasbythefactthat the appellant told lieswhen the Police obtained from him a written 10 statement on 24July 1986,and, also,liedinhisevidence before thetrial Court. Inactual fact the appellant didnotgiveevidence athistrialbut he chose, ashe wasperfectly entitled todo, tomakean unsworn statementfrom thedockdenyingcompletely anyguilt, 15 Itisstated inthejudgment thattheappellant made avery poor impression to the trialJudge, who was not satisfied that he was telling the truth and who, therefore, rejected his evidence as a whole. Itwas pointed out inAnastassiades v. The Republic,
(1977)2 20 C.L.R. 97, 210, that it is not entirely accurate to describe an unsworn statement from the dock as evidence in the strict sense and,inanyevent,itappearstousthatthetrialJudge,byattributing the status of evidence to the unsworn statement of the appellant from the dock and bystatingthat the appellant made avery poor 25 impression to him, especially when such impression must have been averyfleetingonebecausethesaidstatementwasveryshort indeed and itoccupiesonlyfivelinesoftherecordofthetrial,has undulytreated the falsity ofthe unsworn statement from the dock of the appellant as an element against him, thus rendering his 30 conviction unsatisfactory. There is no doubt that the appellant would not, in any case, have been convicted had it not been for the evidence of the complainant, which the trialJudge treated as reliable and found, asalreadystated,thatitwascorroboratedbyotherevidenceinthe 35 case. Having heard counsel for the appellant arguing that the evidence of the complainant should not have been accepted as credible evidence, and bearing in mind too that counsel for the respondentshasveryfairlystatedduringthehearingofmisappeal 263 Triantafyllldes P. Onisiforou v.Police
(1987)that such evidence could not be safely relied on, and having perused such evidence carefully, we formed the view that thisis one ofthoseexceptionalcasesinwhichthisCourt,asan appellate tribunal, isentitledtoreverseafindingoncredibilityofatrialCourt {see, in this respect, inter alia, Economides v. Zodhiatis, 1961 C.L.R. 306, Foumaris v. The Republic,
(1978)2 C.L.R. 20 and Katsiamalisv. The Republic,
(1980)2 C.L.R. 107). 5 In order to show that it was really dangerous to rely on the evidence ofthe complainant itis,wethink, sufficient to point out that in her evidence she relates conversations with the appellant 10 even though it is indisputable that the appellant does not understandSpanishandthecomplainantspeaksonlySpanish and yet, according to her evidence, they were conversing with each other;and what theyweresayingallegedly toeach other is,inthis case, most material as regards the version of the appellant that 15 whatever took place between him and the complainant waswith her consent. Counsel for the appellant has argued, also, that it was not properinthiscasetofindthatlieswhichweretoldbytheappellant inhisstatement tothePolice,whenhewasinterrogatedon24July 20 1986, amounted to corroboration of the evidence of the complainant and counsel hasreferred, inthisconnection, to,inter alia, to R. v. Lucas, [1981]2 All E.R. 1008, 1011,R. v. Dowley, [1983] Crim. L.R. 168,R. v. West, [1984] Crim. L.R. 236 and R, v.R., [1985]Crim.L.R. 736. 25 Inthe light ofthe circumstances ofthiscaseand ofthe case-law referred to,asabove,bycounselfortheappellant, weare,indeed, oftheviewthat,inthe present instance,itwasnotsafe forthetrial Court to treat, in a general and sweeping manner, all lies told by the appellant to the Police as amounting to corroboration of the 30 evidence of the complainant. Because of all the foregoing we decided that the conviction of the appellant should be set aside, and moreover we are not satisfied that thisisa proper case inwhich toapply the proviso to section 145(l)(b)oftheCriminalProcedureLaw,Cap: 155,andto 35 hold that no substantial miscarriage of justice has occurred (see, inter alia, in thisrespect, Nicolaou v. ThePolice,
(1978)2 C.L.R. 60,Khadarv. TheRepublic,
(1978)2C.L.R. 132,Zisimidesv.The Republic
(1978)2 C.L.R. 382, Stylianou v. The Republic,
(1979)2 C.L.R. 109 and Georghiades v. The Police,
(1981)2 C.L.R. 40 155). 264 2 C.L.R. Onisiforou v. Police Triantafyllides P. In the result, this appeal is allowed and the conviction of the appellant, and the sentence passed upon himasa result of it,are hereby set aside. Appeal allowed. Conviction and Sentence setaside 5 I 265 /