2C.L.R. 1987 September 11 [TRIAKTAFYLLIDES Ρ LORIS STYLIANIDES JJ) CHR1STAKIS SOLOMOUMICHAELIDES, Appellant, ν THEREPUBLIC, Respondents (Criminal Appeal No 4764) Evidence--identification of appellantby awitnessfound to be ofpoor quality— 5 Treating other evidence as corroborating testimony in respect of such identification — Misdirection — Basic issue was whether thereexistedother evidencejustifyingafindingbeyond reasonabledoubt thatthe man seen by the witnessmusthave been the accused Evidence— Identification— Pnnciplesapplicable Appeal — Practice— Remal — Thepower to orderretnalisamatterofdiscretion to be exercisedjudicially— Review ofrelevantcase law 10 15 2Q 25 an Theappellant was convicted of thehomicideof ConstanOaDemetn Perlaki d was sentenced totenyears' impnsonment It is undisputed that the deceased was last seen alive on the night of 17 March 1986 andthenherpartly burntbody was found atlocality Zygos inthe area of Alassavillageinthemorningof 25 March 1986 WitnessPalans, who dunng thenight of 24 3 86 was dnving from Platres toDmassol testified that he saw afire and acar parked attheside of the road atthelocality Zygos and a person next tothecar According tohis evidence attheAssizeCourthe recognized the appellant as the person who was standing next tothe car near thefire atlocality Zygos and,lateron,atanidentification parade,hepointedouttheappellant as being such person, and,atanother identification parade, he pointed out thecarof the appellant as thecar which he saw parked near the fire Even though thetrial Courtfound such identification tobe of poor quality, it proceeded to treat other evidence as amounting to corroboration of the testimony relatingtotheaforesaid identification and,asaresult,convicted the appellant 269 Michaelldes v. Republic
(1987)Held,allowingthe appealand ordenng aretnal
(1)Theverdict is unsafe, because thebasic issue was whether ornotthereexisted other independent evidence rendering itsafe to find, beyond reasonable doubt, that theman seen by witness Palansatthelocality Zygos musthave been theappellant
(2)There emerges clearly from thecase-law thatthepower toorderanew tnal in a cnmmalcase isdiscretionary anditmustbe exercised judicially with the interestsof justice being thepredominant consideration 5
(3)Inthiscase andinthe lightof all relevant considerations,itis necessary intheinterestsof justice toordera new tnal inthis case 10 Appealallowed Orderfor retnal Casesreferredto R ν Tumbull (197613 All ΕR 549, Taylorν ChiefConstableof Cheshire [1987] 1All ΕR 225, Anastassiadesν TheRepublic
(1977)2C LR 97, 15 Katstamaltsν TheRepublic
(1980)2 C LR 107, Rossides ν TheRepublic
(1983)2 C LR 391, R ν Keane, 65 Cr App R 247, R ν Weeder, 71 Cr App R 228, Nestoros ν TheRepublic,1961 C LR 217, 20 Petndes ν TheRepublic,1964 C LR 413, HjiCosta (No 2)ν TheRepublic(1965}2 CLR 95, Isaiasν The Police
(1966)2C LR 43, Zanettosv The Police<1968) 2CLR 232, Loiziasv. 77ie/?epuW;c
(1969)2CLR 217, 25 Piendesv The RepubUc
(1971)2C LR 263, Costounsv. TheRepublic
(1973)2 CLR 322, Eftapsoumtsv ThePolice
(1975)2 CLR 149, Stylianouv The RepubUc
(1979)2 CLR 109, Theodorouv 77iePoice
(1980)2C.LR 217, Georghladesv The Police
(1981)2 CLR 155, 270 30 2 C.L.R. Mlchaelldcs v. Republic Ekdotih EtenaKosmosPressUmited ν ThePolice
(1984)2 C L.R.121, Charalambousν TheRepublic
(1985)2 CL.R.97 Appeal against conviction andsentence. Appeal against conviction andsentenceby Christakis Solomou 5 Michaelideswhowas convictedonthe7thJuly, 1986 attheAssize Court of Umassol (CriminalCase No. 13974/86)onone countof the offence of homicide contrary to section 205 of the Criminal Code, Cap. 154 and was sentenced by Hadjitsangaris, P.D.C. Artemis,S.D.J,andHadjihambis, D.J.totenyears' imprisonment. 10 Chr.PourgourideswithG. Tsikkos,for the appellant. R. Gavrielides, Senior Counsel of the Republic, for the respondents. Cur. adv.vult. TRIANTAFYLLIDES P. read the following judgment of the 15 Court.The appellant was convicted on 7July 1986, by anAssize CourtinLimassol, of thehomicide, between the 17and 18March 1986, of ConstantiaDemetriPerlaki, late of Limassol, contraryto section 205 of the Criminal Code,Cap. 154, as amended by the Criminal Code (Amendment) Law, 1962 (Law 3/62). He was 20 sentenced to ten years' imprisonment as from 25 March 1986, when hehadbeen arrestedandplaced incustodypriortohistrial. Itisundisputedthatthedeceased was lastseenaliveonthenight of 17 March 1986 and then her partly burnt body was found at locality Zygos in the area of Alassa village in the morning of 25 25 March
- During the night of 24 March 1986 a prosecution witness, DemetrisPalaris,was drivingfrom PlatrestoLimassol and at locality Zygos he saw a tire and a car parked at the side of the road andaperson next tothecar. According tohisevidence attheAssizeCourtherecognized the 30 appellantas theperson who was standing nexttothecarnearthe fire atlocality Zygos and, later on,at an identification parade, he pointed out the appellant as being such person; and, atanother identification parade,hepointedoutthecarof theappellantasthe carwhich he saw parked nearthe fire. 35 Counsel for theappellant hasstrenuously challenged as unsafe and unreliable the identification of the appellant as the person who was seen by witness Palaris standing next toa car neara fire at localityZygosduringthenightof 24 March
- 271 Triantafyllldes P. Michaelides v.Republic
(1987)Having carefully examined everything that has been submitted bycounsel forthe appellant andbycounselfortherespondent we have reached the conclusion that itisourdutyinthiscasetoorder a new trial, inthe exercise of our powers under section 145(l)(d) oftheCriminalProcedure Law,Cap. 155,aswellasundersection 5 25
(3)oftheCourts ofJusticeLaw, 1960(Law 14/60). In giving our reasons in this judgment for having reached the decision toordera newtrialweshallabstain asfaraspossible from sayinganythingwhich may, inanyway,affect the outcome of the newtrial;and, for thisreason, we would liketostressthat nothing 10 in this judgment should be taken as indicating, in the least, an expression ofopinion onourpartregardingtheguiltorinnocence of the appellant inrelation to the homicide of the deceased. In our view it suffices to say that the trial Court, in a manner rendering itsverdict unsafe, appears to have proceeded to treat 15 other evidence adduced atthetrialasamounting tocorroboration of the credibility of the evidence of witness Palaris regarding his identification of the appellant at localityZygos,even though such identification had been found, by the trial Court, to be, in the circumstances in which it was made, an identification of poor 20 quality, whereas, in our opinion, the basic issue was whether or not there existed other independent evidence rendering itsafe to find, beyond reasonable doubt, that the man seen by witness Palarisatthe localityZygosmusthave been the appellant. Regarding the legal principles applicable to the matter of an 25 identification such as the one with which we are dealing in the presentcasethetrialCourtquitecorrectlyrelied,interalia,onR. v. Tumbuli, [1976] 3 All E.R. 549, which has been referred to recently with approval in Taylorv. Chief Constable of Cheshire, [1987] 1 All E.R. 225. The Tumbuli case was referred to and 30 followed byourSupremeCourtin,interalia,Anastassiadesv. The Republic,
(1977)2 C L R . 97,281,Katsiamalis v. The Republic,
(1980)2 C L R . 107,116 and Rossides v. TheRepublic,
(1983)2 CL.R.391,401. Itisuseful tobear,also,inmindthecasesofR. v.Keane, 65Cr. 35 App. R.247, andR. v. Weeder, 71 Cr.App. R.228, which have been referredtoinitsjudgmentbythetrialCourt. Afterwehadreservedourjudgmentinthisappealwereopened itshearing on 14 April 1987 because counsel appearing forthe 272 2C L R . Michaelides v.Republic Triantafyllldes P. respondent,actingvery fairly indeed hadplaced before usaletter addressed on 26 March 1987 by the aforesaid witness Palans to theAttorney-General,aswellas astatementobtained from himby the Police on 4 April 1987, by means of which the said witness 5 was, ineffect, stating tnathe was notatallsure thattheman whom he had seen dunng the night of 24 3 86 at locality Zygos was the appellant Then, on 18 May 1987 counsel for the respondent drew our attention to an earlier statement given to the Police by witness 10 Palans on 17 November 1986 by which he had complained that hislifehadbeen threatenedbv ananonymoustelephonecallinan effort to persuade him to change his *estimony about the identification of Michaelides on 24 March 1986 Finally, on 16 June 1987 counsel for the respondent placed 15 before usafurther statementtothePoliceby witness Palans,given on 29 May 1987 by means of which he explained that after the tnal, as a result of threats against him and members of his family, by means of anonymous telephone calls he had wntten to he Attorney-General of the Republic throwing doubt or ms 20 identification of theappellant at locality Zygos on 24 March "^ c ι, and he concluded his said statement by affirming as correc <n3 evidence which he had given against the appellant at th< r.al before theAssizeCourtof Limassol Eventually, though we reopened the heanng of this a ral, 25 neither counsel for the appellant nor counsel for the respc 'ent applied for leave to call before us for further evidence w τi€as Palansor for leave to adduce any other evidence The aforementioned letterof Palansto the Attorney-Generalof the Republic and his statements to the Police, to which we have 30 already referred, are not mmeme'ves evidence for the purposes of the determination of the ρ esent appeal, but they constitute developments which have s'renqthened our view thatwe should order a new trial in the present- CJ'-.J Itisuseful, atthisstage U>iefei t^jatdmgthemakingofanorder 35 for a new trial in a criminal jppe-1, to, inter aha, the following cases Nestorosv TheRepublic, 1 9 6 1 C L R 217, Petndes ν The Republic, 1964 C L R 413, Hjt Costa (No 2) ν The Republic,
(1965)2 CL.R 95, Isaias ν The Police,
(1966)2 C L R 43, Zanettos ν The Police,
(1968)2 C LR. 232, Loizias ν The 40 Republic,
(1969)2CLR 217, Piendes v.TheRepublic ,{1971)2 273 Triantafyllldes P. Mlchaelldce v.RepubUc
(1987)C.L.R. 263, Costouris v. The Republic,
(1973)2 C.L.R. 322, Eftapsoumis v. ThePolice,
(1975)2C.L.R.149,Stylianou v. The Republic,
(1979)2 C.L.R. 109, Theodorou v. ThePolice,
(1980)2 C.L.R, 217, Georghiades v. The Police,
(1981)2 C.L.R. 155, Ekdotiki Eteria Kosmos Press Limited v. The Police,
(1984)2 C.L.R. 121 and Charalambous v. The Republic
(1985)2 C.L.R. 97. 5 Thereemergesclearlyfrom theabovecase-lawthatthepowerto order a new trial ina criminalcase isdiscretionary and itmust be exercised judicially with the interests of justice being the 10 predominant consideration. Inthe present instance we have dulyconsidered, among other things, the seriousness ofthe offence of whichthe appellant was convicted, the complexity of this case, the time that has elapsed since the commission of the crime and the conviction of the 15 appellant, the period during which the appellant has been in prison,thefactthattheappellantwillhavetogothrough asecond trial, the exprense involved and, particularly, the expense with which the appellant is to be burdened, and, in the light of all relevant considerations, we havereached the conclusion that itis 20 necessaryintheinterestsofjusticetoorderanewtrialinthiscase. We, therefore, in the exercise of our powers under section 145(l)(d) of Cap. 155 and section 25
(3)of Law 14/60, set aside theconviction ofthe appellant againstwhichthisappeal hasbeen made, as well as the sentence which was imposed on him as a 25 resultofsuch conviction,andweorderthatthereshould beanew trialofthiscasebefore, necessarily,adifferently constitutedAssize Court.Inthemeantime,theappellant istoremain incustody. Appeal allowed. New trialordered. 274 30