1 C.L.R. ΠRIANTAFYLUDLS Ρ SrrLIANlDha LORisJJ, ANTONIS FANIERCb, Appellant THE REPUBLIC Respondent {Criminal Appeal No 47b3l Credibility of witnesses— Finding as to — Interference with appeal — Justified in the circumstancesof this ctn>e on Evidence — Standard of proof — Lurking doubt as Όguilt -- Acquittal ofaccused 5 10 15 Sentence — Possession of explosives (4 dynamite bombs on one occasion and 2 dynamite bombs on another) — Four yean impnsonment The appellant was found guilty on vanous counts for inciting others to place explosive substances and for possession of explosives, ι e two dynamic bombs on one occasion and four such bombs on another occasion He was sentenced to five year;.' impnsonment on each of the counts relating to incitement (sentences to run concurrently}, whilst no sentence was passed in respect of the possession of tJV explosives The prosecution witnesses, who were believed by the tnal Court were themselves arrested at first in connection with the aforesaid offences of incitement, but denied any knowledge therefor, whiUt much later they decidedto divulge the aforesaid incitements 20 25 Held
(1)This is one of the rare occasions when interference by this Court with a finding concerning credibility of witnesses is justified This Court has been left with a lurking doubt as regards j the guilt of the appellant for the incitements
(2)However,thisCourthasnotbeenpersuadedthatthepartofthe evidence ofone ofthesaidwitnesses relatingtothepossession of the explosives was equally unsafe. 13 Fanieros v. Republic
(1988)
(3)Fouryears' impnsonment are hereby imposed on each ofthe counts relating toexplosives,sentences torunconcurrently as from 25 3 1986 Appeal allowedto the above extent Sentencesasaforesaid 5 Casesreferredto HjiSavvav TheRepublic
(1976)2 C LR 13 Kouppisv TheRepublican) 2CLR 361, Foumans ν TheRepublic
(1978)2 CLR 20 Zistmides ν TheRepublic
(1978)2 CLR 382, 10 Katsiamaltsv TheRepublic
(1980)2CLR 107, Katelansv ThePolice
(1980)2 CLR 230, Omsiforouv ThePolice
(1987)2CLR 261 Appeal against conviction and sentence. Appeal against conviction and sentence by Antonis Fanieros 15 who was convicted on the 5th June, 1986 at the Assize Court of Larnaca (Criminal Case No 5030/86) on eight counts of the offence of incitementof otherpersons toplace explosives contrary to section 370(a) of the Cnminal Code, Cap 154 and on two counts of the offence of unlawful possession of explosives 20 contrary tosection 4
(4){5)of the Explosive Substances Law, Cap 54 (as amended by Laws21/70 and 27/78)and was sentenced by Papadopoulos Ρ DC , Eliades and Arestis, DJJ to five years' impnsonment on the incitement counts, with no sentence being passed ontheothertwo counts,thesentences torun concurrently 25 Κ Savenades with C Savenades, for the appellant Μ Kypnanou, Senior Counsel of the Republic with A Vassiiiades and R Vrahimi - Petridou (Mrs), for the respondent Cur adv vult 30 TRIANTAFYLL1DES Ρ read the following judgment of the Court The appellant was found guilty, by an Assize Court m Larnaca, on 5 June 1986, of six offences of incitement of other persons toplace explosivesubstances atthehouse andth- motor car of aDistnctJudgeinLamacaioncounts 1, 2,3,4 and 7 inthe 35 information), of three offences of incitement of other persons to 14 2C.L.R. Fanieros v. Republic Triantafyllides P. place explosivesubstances atthepremisesof twonight clubsand abutcher'sshopandmotor-car inLarnaca (oncounts8,9 and 10) andhewas,also,convictedoftwooffences ofunlawful possession •of explosives, namely two dynamite bombs on one occasion and 5 four dynamite bombs on another occasion (oncounts5and 11). Hewassentenced toconcurrent termsof impnsonment for five years in respect ot each one of the offences of incitement (on counts 1, 2, 3, 4, 7, 8, 9, and 10 in the information) and no sentence was passed upon him in respect of the offences of 10 possessing explosive substances (on counts 5 and 11) as such offences were found to be directly related t^ the offences of incitement. The convictions of the appellant were primarily based on the evidence of three prosecution witnesses, namely Panayiotis 15 Christou (P.W.19), Pantelis Photiou (P.W.26) and Michael Nicolaou (P.W.30). The convictionsofthe appellant on counts4and 7were based on the evidence of prosecution witness Panayiotis Christou. The convictions of the appellant on counts3,5, 8, 9, 10and 11 were 20 based on the evidence of prosecution witness Pantelis Photiou; and theconvictionsoftheappellant oncounts1 and2were based onthe evidence of prosecution witnessMichael Nicolaou. Without needing togointo any greatdetailwe have tosay that wehave been driven irresistibly to the conclusion thatthe quality 25 of the evidence of the aforementioned three prosecution witnesses was such that they could not be safely relied on in convicting the appellant of the offence of incitement. Allofthem atvariousstageswerearrested inrespectof offences which wereclosely related tothe incitementsbythe appellant for 30 which they testified and they denied any knowledge whatsoever oftheir involvement inany wayinsuch mattersand definitely did not mention the incitements on the part of the appellant. Yet, suddenly and allegedly spontaneously all three of them decided later, and very belatedly, to divulge the aforesaid incitements, 35 some of which related back toquite long ago. We appreciate that the appellant was being charged with very serious crimes, especially as some of them related to incitements to commit heinous crimes against a member of the judiciary, but thiscannot, inanyway, betreated asloweringthestandard of the 40 proof necessary to establish the guiltofthe appellant. 15 Triantafylltdes P. Fanieros v. Republic
(1988)On the basis of the whole matenal before us we have no hesitation inholding thatwe have been left withalurking doubt as regards the guilt of the appellant regarding the safety of his convictions in connection with the offences of incitement (see, inter alia, in this respect HjiSawa ν The Republic,
(1976)2 5 C L R 13, Kouppis ν The Republic,
(1977)2 C L R 361, Foumarts ν The Republic,
(1978)2 C LR 20, Zistmides ν The Republic,
(1978)2 C L R 382 Katsiamahs ν The Republic,
(1980)2 C LR 107 and Katelans ν The Police,
(1980)2 C L R 230) This ib indeed one of those rare occasions on which we are justified as an appellate tribunal to interfere with a conviction based on findings of credibility made by thetnalcourt(see, inthis respect Omsiforou ν The Police
(1987)2 C LR 261 and the case-law referred to in thejudgment in thatcase) 10 15 As regards, however the two convictions of the appellant for possessing explosives, namely two dynamite bombs on one occasion and four dynamite bombs on another and though we have treated as unsafe the evidence of prosecution witness Pantelis Photiou in relation to the conviction about offences of 20 incitement which were based on his evidence, we have not been persuaded and theburdenlaid upontheappellanttodoso -that the part of the evidence of the said prosecution witness which established that the appellant was seen on two occasions by the .said prosecution witness to be in possession of the aforesaid 25 dy kimite bombs was equally usafe and, therefore, should not nave been relied on m convicting the appellant in respect of the oftences of possession of explosives We, consequently, allow the appeal against the convictions of the appellant on all countsrelating tothe incitementcharges and 30 we dismiss the appeal in relation to the explosive substances charges and uphold the convictions of the appellant on counts 5 and 11 in the information We set aside the sentence of five years' imprisonment which was imposed on the appellant in respect of the offences of 35 incitement and as no sentence was imposed by the tnal Courtin relation tothe offences of possessingexplosiveswe propose todo so now after heanng what counsel for the appellant has tosay in mitigation Mr C Savenades was heard as regards sentence 16 40 2 CLR. Fanieros v. Republic Triantafyllides P. Court:In relation to the two offences of possessing explosives wesentence the appellant toterms of impnsonment of four year? to run concurrently as from 25 March 1986 when the appellant wastaken into custody. '_",•;-* -•.;>"':'«"'-.. . / ' ·":.·•V"'-I. '•; J'.·"-'.'.- Appeal against incitement offences allowed. Appeal againstcounts of possessing explosives dismissed. .-,'*-. y ?: 17