clr/1988/1988_2_37.pdf

(1988)opportunity appellant hadtomurderthedeceased, theblood stams on hissocks andthebumperofhiscar matchingtheblood groupofthe victim, thehiding ordestructionoftheclotheshewas weanng onthe night of the cnme,and othercircumstantial evidence Counsel fortheappellantconfined theappealtotwogrounds,ιe 5 (a)That between 8 30 a m to 1 30 ρ m on theday following the murder,theappellant was undereffective arrest by thepolice,whilst the police made it appear that they were simply soliciting his assistance Consequently, counsel argued, evidence recovered (e g the bloodstained socks)andstatements made dunngthattimewere, 10 on the authonty of Georghiades ν The Police

(1983)2 C LR 33. inadmissible, as obtained in contravention of Art 11 of the Constitution (b) That the evidence as a whole was equally consistent with a finding thatthekillingwas notpremeditated 15 Held,dismissingthe appeal

(1)The conduct of the police in pursuing the investigation of a cnme must be examined objectively, a position compatible with the effective sustenance of the nghts of the citizen and protection from abjse of policepower Thefact thatthepolicedidnotseek toputthe 20 appellant underarrest ortheirclaimthattheyhadnointention,atthat stage, toarrest him,are notdecisive If,despite formal constraintsof appellant's freedom ot movement, the police intended to keep him under control, if he attempted toleave or if he refused cooperation, the conclusion would be thathe was underarrest without warrant in 2 5 breach of Art 11 2{c) of theConstitution Inthiscase theevidence leavesnodoubtthatthePolicetreatedthe appellant dunng the said penod of time as a free agent

(2)Premeditation connotes prior planning or contemplation of the heinous deed in circumstances permitting cool reflection upcn 30 one's acts Tofind premeditated murderthekillingmustbe the result of contemplated action conceived and earned out in cold blood An interval of time must elapse between the contemplation of muraer and theimplementation of the plan, such as would allowfor seconc' thoughtstoprevail Iftheculpntisinacoolstate of mind,thetimethat 3 5 elapses between planning andexecution could be very short No inference about premeditation can be drawn from the fact of killing itself But the circumstances of the killing may themselves furnish evidence of premeditation tothe extent that they illuminate the intentions of the accused before embarking on the homicidal 40 attack 38 2C.L.R. 5 H a d j i S a w a s v. Republic Moreover, the evidential value of the brutality of the homicidal attackforproof of premeditation hasbeenjudicially accepted. Itwas, also judicially accepted that «evidence of premeditation can be furnished by former grudges or previous threatsand expressions of ill-feelings; ....»(A passage from Penal Law of India, 9th Ed.,Vol. 3, p. 2299 by Sir HariSingh Gourcitedwith approval inAnastassiades ' v. The Republic (Ϊ977) 2 C.L.H. 97). In the light of the aforesaid principles and the evidence adduced, the summing up of thetrial Courtcannotbe faulted. 10 Appealdismissed. Casesreferred to: Policev.Ceorghiades

(1983)2 C.L.R.33; Republic v.Pierides

(1971)2 C.L.R. 181; R.v.Shabban.W 15 C.L.R. 82; Halt!v.Republic, 1962 C.L.R. 18; Pieris v.Republic {1963) 1 C.L.R. 87; Pavlou v.Republic, 1964 C.L.R. 97; Koliandris v.Republic

(1965)2 C.L.R. 172; Aristidouv.Republic

(1967)2 C.L.R.43; 2 0 Ioannides v.Republic

(1968)2 C.L.R. 169; Vrakasv.Republic

(1973)2 C.L.R. 134; Kouppis v. Republic

(1977)2 C.L.R.361; Anastassiades v.Republic

(1977)2 C.L.R. 97. Appeal against conviction and sentence. 30 Appeal against conviction and sentence by Demetrakis Hadjisawas who was convicted on the 31st July, 1985 at the Assize Court of Nicosia (Criminal Case No. 20080/84) on one count of the offence of premeditated murder contrary to sections 203 and 204 of the CriminalCode, Cap. 154 {as amended by Law 86/83) and was sentenced by Boyadjis P.D.C., Hji Constantinou, S.D.J., S. Nicolaides, D.J. to life imprisonment. E. Vrahimi (Mrs.),for the appellant. 35 L. Loucaides, Deputy Attorney-General of the Republic, for the respondents. Cur. adv. vult 39 H a d j i S a w a s v. Republic

(1988)A.LOfZOU J.; Thejudgment of the Court willbe delivered by Pikis, J. PIKIS J.: The appellant was convicted by the Assize Court of Nicosia of the premeditated murder of Andrie Miliotou. and was sentenced to life imprisonment, thesentence prescribed by law. 5 The Assize Court found that appellant killed Andrie, his exmistress, a pretty bar-girl of25, following theseverance of their relations and, the failure of hispersistent efforts to woo her back. The appellant, a married man of 49, found it impossible to reconcile to separation and was not prepared to take «no» foran 10 answer. There was ample evidence before the Assize Court that thedeceased feltshe had enough ofhim and toldhimasmuch on a qreat number of occasions. Neither his promises to be more gentle toherinfuture, norhisthreatshadanyeffect onher.On the night of the killingthe appellant made a last attempt to persuade 15 her to go back to him; when itfailed he killed her in the dead of night, between 2and 3 a.m., at aspot chosen for itsisolation and unlikelihood of attracting passers-by or alerting persons residing nearby. The murder was committed atapetrol station adjacent to Dem. Severis Avenue at Nicosia, an area that bristles with life 20 duringthedaybut isveryquietatnight.Theareaissurrounded by government offices that are closed in the evening; there are no dwelling houses in the vicinity except for a block of flats. The precise spot chosen for theperpetration of the crime wasthe area between the two petrol pumps intended, no doubt, to achieve 25 maximum privacy, as indeed it achieved. Andrie Miliotou was lying dead for three or more hours before her body was discovered by the petrol-station attendant on his arrival to open the station at5.50 a.m. or\ Asitisoften the case, in cases ofthisnature there wasno direct evidence of the sequence"of eventsthat ledtothedeath ofAndrie Miliotou, or the circumstances that preceded it.On consideration of the circumstantial evidence the Court found that the appellant was the murderer of Andrie Miliotou. The Court arrived at this conclusion on consideration of the opportunity appellant had to 35 murder the deceased, the blood stains on his socks and the bumper of his car, matching the blood group of the victim, the hidingordestruction oftheclotheshewaswearingonthenightof the crime,and other circumstantial evidence that left the Courtin no doubt about the identity ofthe killer. Furthermore, they found 40 40 2 C.L.R. H a d j i S a w a s v. Republic PikisJ . that the murderwas premeditated 5 10 15 20 Counsel for the appellant, in her thorough and able address, made nosuggestion thatthe findings of theCourtdid notwarrant the conclusion as tothe identity of the culpnt She questioned his conviction exclusively by reference to one finding, the one affecting the legitimacy of the action of the Police vis-a-vis the appellant,between thehoursof8 30 a m - 1 3 0 p m of thedayof the cnme In her submission the accused was effectively under arrest, whereas the Police made itappear that they were simply soliciting theassistance oftheappellantintheirinquinesdisguising the true purpose of their action If this submission is accepted, counsel argued, evidence obtained dunng the five-hour interval ought to be excluded on the authonty of Policeν Georghiades.* At that stage of the investigation statements were made by the appellant and Exhibits were recovered, including the bloodstained socks thathadanmcnminatoryeffect The exclusion of this evidence from the chain of circumstantial evidence would undermine the basis of the conviction and render the verdict unsafe, liable to be set aside for having been founded on inadmissible evidence Theonly otherground of appeal thatwas pressed before us was the finding of premeditation The evidence relevant to the facts thatpreceded thekilling was, inthecontentionof counsel, equally consistent with the absence of premeditation 25 Learned counsel for the Republic, the Deputy AttorneyGeneral, supported the verdict of the Court,denying the validity of both grounds of appeal In his able address, appropnately directed to the issues raised on appeal, he denied thattheactionof thePolice inseeking information from theappellantonthemorning 30 of 21 9 84, was inany way fraught with malafides or underscored by any desire on the part of thePolice totrap the appellant tothe prejudice of his nghts The finding of premeditation, on theother hand, was perfectly open to the Court in view of its pnmary findings and their evidential value The brutality of the murder 35 itself,provided evidence of premeditation,as wellas theconduct of the appellant before the cnme His conduct after the commission of the offence evinced by the lodgment of two packets of cigarettes on the side of the dead body in order to convey a false picture of what happened betrayed, in the •

(1983)2CLR 33 41 PikisJ . H a d j l S a w a s v. Republic

(1988)submission of Mr Loucaides, calmness of mind inconsistent with intemperate conduct Below, we shall deal with the two aspects of the appeal inthe order enumerated above The non-arrest of the appellant: 5 The appellant had his residence and hisbusiness atPensterona The local police were asked to seek information from the appellant relevant to his movements the previous night They acted on instructions from the team of police officers who took up the investigation of the case At the time of the issuance of the 10 instructions the police had no evidence or information casting suspicion on the appellant for the commission of the cnme Nor did they pass such information tothe policemen who were merely instructed to approach and seek information from the appellant The decision in The Republic ν Phvos Petrou Piendes* 15 establishes that the conduct of the police in pursuing the investigation of a cnme must be examined objectively, a position compatible with the effective sustenanceof thenghtsof the citizen and protection from abuse of police power Therefore, the professed intention of the police not to put the appellant under 20 arrest and their subjective evaluation of the task they were pursuing is notconclusive The fact thatthepolice did notseek to put the appellant under arrest or their claim that they had no intention, at thatstage, toarrest him,are notdecisive Ifitis made to appear that despite the absence of formal constraints to the 25 freedom of movement of the appellant the police intended to keep him undertheircontrolifhemade anyattemptinexercise of that freedom to refuse cooperation or leave, the police action would amounttoan arrest effected without awarrant inbreach of the constitutional nghts of the appellant safeguarded by article 30 11 2(c)of theConstitution Careful examination of the events thatfollowed theencounter of the appellant with the police, leaves no doubt the policemen treated the appellant until 1 30 ρ m as a free agent placing no constraints whatever on his freedom of movement Nordid they 35 have information until laterthatday, such as would justify themto effect an arrest The appellant, on theotherhand, notonly hedid not find the inquines of the police unwelcome but all too readily '(197V2CLR 18J 42 2 C.L.R. H a d j l S a w a s v. Republic Plkls J . availed himself of the opportunity to disabuse them of any suspicion they might in due course come to entertain about him. The finding of the Court that no constraints had been placed on the freedom of movement of the appellant until 1.30 p.m., was 5 perfectly warranted by the evidence. His collaboration with the police inquiries was wholly voluntary and none of his statements or acts between 8.30 a.m. and 1.30 p.m. were induced by coercive action of the police. We find no ground justifying interference with the decision of the Assize Court to admit in 10 evidence statements made by the appellant and materials recovered at thatparticularstageof the investigation. With the collapse of this ground no issue remains on appeal affecting the identity of the person who battered Andrie Miliotou to death. 15 Now, we shall proceed to examine whether the murder was premeditated. Premeditated Murder: The crime of premeditated murder isunknown tothe common law. The concept of malice aforethought, the mental element 20 (mensrea) necessary tosustain a charge of murder under English law, is in no sense identical or a notion akin to premeditation under continental law. We shall not debate differences between the two concepts. Attention will be focused on the definition of premeditation with special reference to the evidence wherefrom 25 the Court mayinfer itsexistence. The crime of premeditated murder first found its way into CypruslawthroughtheOttomanPenalCode;fashioned, asitwas, on the continental law wherefrom it originated. It was abolished with the enactment of the Criminal Code in 1929, and re30 introduced aspart of thelawof thecountryin 1962.* The decision in R. v. Shaban** is often cited as containing a succinct but accurate analysis of the concept of premeditation. The direction inthat case wasadopted and expounded ina great * (See.Law3/62, introducedinordertoreconciletheprovisionso!theCriminalCode,forthe impositionofcapitalpunishment, withArticle7.2oftheConstitution). "VWC.LR.82. 43 Pius J. H a d j i S a w a s v. Republic

(1988)number of decisions of the Supreme Court * The following propositions emerge from the caselaw Premeditation connotes pnor planning or contemplation of the heinous deed in circumstances permitting cool reflection upon one's acts To find premeditated murder the killing must be the 5 result of contemplated action conceived and carried out in cold blood Consequently, no premeditation can be inferred from the instantaneous reaction to events because the element of prior contemplation is missing An interval of time must elapse between the contemplation of 10 murder and the implementation of the plan, such as would allow for second thoughts to prevail Taking the life of another is abhorrent to the human conscience and people ordinanly desist from givingeffect tosuch thoughtif they have thechanceto reflect upon the consequences of their acts To render murder 15 premeditated the culpnt must have had thatchance to desist and dismissed it Inthose circumstances hisaction amountsto planned murder in cold blood premeditated murder If the culprit is in a cool state of mind the time that elapses between planning and execution could be very short 20 The significant element of the cnme of premeditated murder, the one that pnmanly distinguishes it from the crime of murder with malice aforethought, known to English law, is that no inference about premeditation can be drawn from the fact of killing itself Inother woids the Court cannot infer premeditation 25 irom the fact thattheaccused killedthevictim Premeditation must be proved as a separate fact On the other hand the circumstances of the killing may themselves furnish evidence of premeditation to the extent that they illuminate the intentionsof theaccused before embarking on 30 the homicidal attack The Assize Court treated the circumstances in which the appellant murdered the deceased as providing evidence of premeditation The weapon used for the cnme, a meat-cleaver, considered in conjunction with the brutality of the blows, no less 35 * (See, inter aha,MustafaHahlν Republic, 1962 C LR 18, Piens ν Republic

(1963)1 CLR 87,Pavhuv Republic, 1964CLR 97, Kollandnsv Republic

(1965)2 C LR 172,Arisudouv Republic

(1967)2CLR 43,ioannidesvRepubhc

(1968)2CLR 169, Vrakasν Republic

(1973)2 CLR 134 Kyriacos NicolaKouppis ν Republic

(1977)2 CLR 361) 44 2 C.L.R. HadJISawas v. Republic Plkls J . than eightadministered tosensitive parts of the body designed to bring about death, and the relentless pursuit o( the victim over a distanceof30ft., disclosedasettled intenttokillthevictim,existent atthe outset of the assault. 5 The evidential value of the brutality of the homicidal attack for proof of premeditation, wasextensively debated by the Supreme Court in Andreas Anastassiades v. Republic.*^The following passage from thejudgment of A.Loizou.J., atp. 153.lines 8-18, putsthe matterin perspective: 10 «Thattherewaspremeditation isapparent from thebrutality of the blowsthey started when the victim wasstanding in the room, assuggested bythelocksofhair found on thefloor and continued whilstthevictimwaslyingonthe floor with his face and head alreadyseverelywounded, whichisindicativeofthe determination of the appellant to finish him off. Connected with this, isthe instrument used and the fact that itcould not have been found there, unless it had been intentionally brought in. The nature of the instrument used and the circumstances under which itcame tothe scene of the crime, are most significant factors with regard to the issue of premeditation.» 15 20 Learned counsel for the appellant suggested that the medical evidence connected with the nature and severity of the injuriesof the victim, coupled with the distance that separated the first from 25 the last assault - 30ft. - could not rule out the occurrence of a struggle between the appellant and the deceased. To begin, itis difficult to contemplate such a struggle between a man of the powerful physique of the appellant -5ft- 10 1/2 in. tall -and the victim,aperson ofslightandslenderstature-1m.60cm.inheight. 30 The visualisation of such a struggle having taken place becomes remoterstillupon reflection thatappellant wasarmedwithalethal weapon whereas his victim was unarmed. Contrary to the submission of counsel the medical evidence did not suggest a strugglebetweentheassailantandthevictim.Allitestablished was 35 that some of the wounds of the deceased were the result of defensive action on her part suffered, no doubt, in an attempt, while she still had life in her, to shield sensitive parts of her body from the assault. Inreviewingthe inferences drawn bytheAssizeCourt from the *

(1977)2CLR. 97. 45 Pikisj . HadjiSawas v. Republic

(1988)circumstances of the killing,we have not overlooked the medical evidence coming from Dr.Vanezis and Dr.Stavrinos, particularly thepassage from the evidence oftheformer, totheeffect thatthe injuries wereconsistentwiththeirhavingbeen inflictedinastateof frenzy. Earlier, Dr.Vanezishad saidthathewasunhappy withthe 5 use of the word «frenzy» in the context of contemplation of the mental state of the assailant. What emerges upon careful examination of the medical evidence is that the blows were delivered with unabated determination to finish off Andrie Miliotou. Asindeed the Assize Court found. 10 Therelationsbetween theappellantandthevictim,theviolence occasionally used by the appellant against her and, more significantly, histhreatstakingattimestheform ofthreatstokillher unless she reconciled to his wishes, also provided, according to thejudgment of theAssizeCourt, evidence ofpremeditation. The 15 direction of the Assize Court on thisaspect of the case cannot be faulted inlaw either. L. Loizou, J., in Anastassiades, supra, cited with approval passages from Sir Han Singh Gour's Penal Law of India* indicating that«....Evidence of premeditation canbefurnished by 20 former grudges or previousthreats and expressions of ill-feelings; ....» Counsel for the appellant submitted that the threats of the appellant could notbe isolatedfrom therelationship oftwolovers who fell apart and the inevitable wrangling attendant on such 25 occasions.We disagree.Theappellant, astheAssizeCourt rightly found, was obsessed with Andrie Miliotou and could not suffer and found it impossible to reconcile to her enstrangement from him. On the other hand, Andrie Miliotou had enough of him and toldhim so.Though sheresignedtotherepeated entreatiesofthe 30 appellant towinherback,sheused everyoccasion totellhim«no» and repeated her determination to keep apartfor good from him. Thussheagreed onthenightofthemurdertojointheappellant for a drink, comforted bythepresence ofhisfriend Tsangaridesandthe latter's girlfriend. But she expressed surprise at the fact that she 35 was not driven home, her intended destination, by Tsangarides after theirouting.Theappellant, onthe otherhand, had contrived tofind himself alone withthevictimattheend ofthe evening. He removed his car from where it was safely parked and drove it - (9thed.. Vol. 3. p.2299). 46 2 C.L.R. HadjiSawas v. Republic PiItis J. outside the house of Tsangarides in the sure expectation that Andriewould have littleoption but toagree tobedriven home by the appellant. We cannot speculate on what went on between them at that stage of the evening. But we know as a fact. 5 appropriately noticed and evaluated by the Assize Court, that he did not drive her home but toan isolated spot of the town where he butchered her to death. The inescapable inference appropriately drawn by ihe Assize Court isthatheisolatedherinordertocarryouthisplantokillher. 10 Very possibly he made one more attempt to persuade her to go back and then gave vent to his plans in face of her continued refusal to agree to his wishes Even if we were to make that supposition in favour of the appellant, itwould matter net for the existence of premeditation isnotnegatived asthe case ofMustafa 15 Halilv. Republic*established,bythefastening oftheplan tokillon thepriorelicitation of certain facts. Theexistenceofthelethalweapon inthecaroftheappellant,as the Assize Court rightly concluded, also provided evidence of premeditation. Counsel forthe defence correctly pointed out that 20 the meat-cleaver mighthave been, on account of the fact that the appellant was running a restaurant and a butchery, in the car for someconsiderabletime.However,thesignificance ofthispieceof evidence lies mostly in the knowledge of the appellant as to the availability ofthe lethalweapon when he contrived toseclude the 25 victim first and then isolate her atthepetrol station.The appellant acted inthesureknowledge thathehad the meanstofinish heroff quickly. The Assize Court rightly directed itself in law and summed up adequately the evidence on the subject of premeditation. Its 30 findings were perfectly warranted by the evidence and its conclusions inevitable.Wefind noground for interference. Theappeal isdismissed. *1962CLR. 18 47