2C.L.R1988January 14 (TRIANTAFYLUDES,P.,SAWIDES,STYUANIDES,JJ.) PANAYIOT1SANDREA PARPAS, Appellant, v. THEREPUBLIC, Respondent. (Criminal Appeal No. 4808). 5 Constitutional Law —Right to liberty— Constitution, Arts. 11.2(c) and 11.3, 33.2, 34 and35 of theConstitution — Obtaining handwriting specimens of aperson under arrest— Purpose of obtaining such specimenscompletely alien tothereasonofsuchperson'sanest and detention — Thatpart of thedetention during which thespecimens were taken wasunconstitutional — Therefore, thespecimens could not beusedin evidence againstsuch person. E\ddi.nce— Admissibility — Evidence obtained during detention which wasin contravention ofArt. 11of theConstitution — Inadmissible. 10 Appeal — New trial — Conviction based on inadmissible evidence — Whethernew trialshould beordered — Principles applicable. The appellant was arrested in virtue of a judicial warrant as a suspectforpossessingexplosivesubstances.Duringhisdetentionthe 15 Police obtainedhandwriting specimensfrom him.Such specimens wereadducedinevidenceagainsttheappellantinrespectofcharges concerningforgeriesofvariouscheques. The appellant, who was, eventually, found guilty on various countsconcerning such chequesand wassentenced toconcurrent termsofimprisonment,rangingfrom9monthsto3years,appealed. 20 25 Held,allowingdieappeal:
(1)ThisCourtreachedtheconclusion that,inthecircumstancesofthiscase,thedetentionoftheappellant asasuspectforpossessingexplosivesubstances,wasresortedtoin orderto enablethe police toobtain thespecimens needed forthe purpose of investigating the offences for which the appellant was convicted.
(2)In the circumstances of this case, the appellant's detention 5 Parpa·v. Republic
(1988)during thetime,when thepolice tookthespecimens from him,was contrarytoArticles 11.2(c}and3 ofthe Constitution.
(3)Thehandwritingspecimenswerenotadmissibleinevidence,as theyιlad been obtained inamannercontrarytotheConstitution.
(4)Astheappellanthas,already,servedsomeofthesentencesand a substantial part of the sentence of 3 years' imprisonment (14 months),nonew trialwillbeordered. 5 Appealallowed. Casesreferredto: 1 Merthodja v.ThePolice
(1987)2 C.L.R.227; ° ThePolicev. Georghiades
(1983)2 C.L.R.33; Enotiadesv.ThePolice
(1986)2 C.L.R.64; Psarasv.TheRepublic
(1987)2 C.L.R. 132; Michaelidesv.TheRepublic
(1987)2C.L.R.
- Appeal against conviction and sentence. 15 Appeal against conviction and sentence by Panayiotis Andrea Parpas who was convicted on the 20th November, 1988 at the Assize Court of Nicosia (Criminal Case No. 7061/86) on four counts of the offence of forging of cheques contrary to sections 331, 333, 334 and 336 of the Criminal Code Cap. 154) on four 20 counts of the offence of personation contrary tosections 360 and 35 of the Criminal Code, on four counts of theoffence of uttering a false documentcontrary tosections 331,333,334,336 and 339 of the Criminal Code and on four counts of the offence of obtaining money by false pretences contrary to sections 297 and 25 298 of the Criminal Code and was sentenced by Artemides, P.D.C., Kronides S.D.J, and Soupashis, D.J.to concurrentterms of imprisonment ranging from threeyears toninemonths. E. Efstathiou with M. Tsangarides, A. Christoforou and C. Kamenos, for theappellant. M. Kyprianou, Senior Counsel of the Republic, with A. Vassiliades, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment of the Court. The appellant was on 20 November 1986 found guilty by 35 an AssizeCourt of Nicosia of four forgeries of cheques (oncounts 1,5,9 and 13 inthe information). 6· 30 2 C.L.H. Parpas v. Republic rriantafyllldes P. Also,inrelation tothecheque involvedincount 1 hewasfound guilty ofthe offences of personation, utteringa forged document andobtainingmoney byfalsepretences(oncounts2,3and4)and in relation to each of the cheques involved incounts9and 13he 5 was convicted of the offences of personation, uttering a false document and attempting toobtain money byfalse pretences(on counts 10,11 and 12and on counts 14,15 and 16respectively). Hewasfound not guiltyoftheoffences ofpersonation, uttering a forged document and obtaining money by false pretences in 10 relation tothe cheque involved incount 5 (on counts6, 7and8). The appellant was sentenced to concurrent terms of imprisonment ranging from three yearstonine months. Theappellant'sconvictionsoftheoffences offorgery,andofthe related thereto otheralready mentioned offences, were primarily 15 based oncomparisonsmadebyanexpertwitness,whowascalled bytheprosecution, ofthehandwriting ontheforged chequeswith the handwriting of the specimens obtained from theappellant on 29January
- On that date the police searched on the strength of a judicial 20 warrant the premises of the appellant at Palechori village on the ground that the appellant possessed and was hiding there firearms.Thesearch took place between 2.25 p.m. and 3.40 p.m. At 3.45 p.m. the appellant was arrested on the strength of a judicial warrantatPalechori on the ground thathe wassuspected 25 of possessing firearms and wastaken toa policestation inNicosia wherebetween4.35p.m.and5.30p.m.therewereobtained from him, with his consent admittedly, the aforesaid specimens of his handwriting. At about 7.30 p.m. the appellant was released in so far as the 30 suspected possession of firearms byhim was concerned and was arrested on the strength of a judicial warrant in relation to ine offences of which he waseventually convicted. It has been strenuously argued, inter alia, by counsel for the appellant that the aforementioned handwriting specimens of the appellant,onthebasisofwhichhewasconvicted,oughtnottobe treatedasadmissibleevidence inasmuch astheywereobtained at .*timewhen theappellantwasbeingdetainedatapolicestationin Nicosia in a manner contrary to Article 11 of the Constitution, whichsafeguards the rightto liberty. 40 On the basisof allthe materialbefore usinthisappealwe have 7, TriantafylHdes P. Parpao v. Republic
(1988)reached the conclusion that the arrest and detention of the appellantatPalechoriandsubsequently ataNicosiapolicestation on the ground that he was suspected of possessing explosive substances was resorted toinorder to place theappellant insuch a position of disadvantage as to make it easier for the police to 5 obtain from him the handwriting specimens which were needed for the purpose of investigating into the offences in respect of whichhe wasconvicted andsentenced inthe present case. Even if we regard his arrest and detention on suspicion of possessing explosive substances as a limitation and restriction of 10 hisrighttolibertywhichwaslawfullymadebyvirtueof paragraphs
(2)(c) and
(3)of Article 11of the Constitution itmust be borne in mind that Article 33
(2)of the Constitution provides that the provisions in Part II of the Constitution relating to limitations or restrictionstowhich maybesubjected thefundamental rightsand 15 libertiessafeguarded bythesaidPartIIshallnotbeapplied forany purposeotherthanthoseforwhichtheyhavebeenprescribedand Article34 of the Constitution provides thatnothing in Part IImay be interpreted as implying for any person any right to engage in anyactivityorperform anyactaimedatthelimitation ofthe rights 20 and liberties set forth in Part II of the Constitution to a greater extentthan isprovided insuchPartII. We think that on thisparticular occasion the way in which the appellant's right to liberty was interfered with, when he was arrested and detained on suspicion ofpossessingexplosives,was 25 incompatible with Articles 33
(2)and 34 of the Constitution and, consequently, his detention at a Nicosia police station was rendered unconstitutional asbeing inconsistent withArticle 11of the Constitution in so far as is concerned that part of such detention during which the appellant has given handwritina 30 specimens to the police for the purpose of the investigation into the present case, because the obtaining of such specimens was completelyalien tothe reason of hisarrestand detention. Ofcourse, we would notlike tomake now a finding of general application and toholdthatoneachand everyoccasionon which 35 a suspect is in lawful custody for one offence he may not be interrogated or asked anything in respect of another offence for which he has not yet been arrested; everything depends on the particular circumstances of each individual situation and in the presentinstance wehavenohesitationinholdinginthisrespectas 40 wehavealready found inthisjudgment. 8 2 C.L.R. 5 Parpas ν Republic Triantafyllides P. \r\Merthodfav ThePoliced 987)2 C L R 227 itwas reiterated that evidence secured by the police through the unconstitutional at the time detention of an appellant cannot be received in evidence orbe relied onby atrialcourtinconvicting theappellant andreference was maue onthatoccasion toprevous case-lawon this pointsuch as ThePoliceν Georghiades,
(1983)2 C L R 33 Enohades ν The Police.
(1986)2 C L R 64 and Psarasν The Republic,
(1987)2 C L R 132 We, consequently, hold that in view of the express and 10 mandatory provisions of Article 35 of the Constitution which provides, inter alia, that the judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, theefficient application of theprovisions of Part II of the Constitution which safeguards fundamental rights, and 1 > liberties, the handwnting specimens which were obtained from the appellant, as aforesaid, when he was being detained at a Nicosia police station after his arrest and detention on the gound that hewas suspected of possessing explosives were marimisb.nlο evidence since they were obtained in manner inconsistent and 20 incompatible with the Constitution and could not be relied upon by the tnal court in convicting him We, therefore, set aside the conviction of the appellant in respect of all the offences in question We have anxiously considered whether we should ordei inthis 25 case, in the light of all relevant considerations a new trial The appellant was sent to prison on November 20 1^Η6 and he has been in pnson till now for approximately fourteen months and consequently, there can anse no question of ordenng a new tnal in respect of the offences for which he was sentenced to terms of 30 impnsonment ranging from nine months to one year He has, however, been sentenced tothree years' impnsonmentin respect of alltheoffences of forging and uttenngforged documentsandin respect of those offences, and beanng in mind the relevant pnnciples of law as they have been expounded in thecase-lawto 35 which we have referred recently inthejudgment we have givenin Michaehdes ν The Republic,
(1987)2 C LR 269 we have decided not to order a new tnal of the appellant because, as already stated, he hasbeen inprison for fourteen monthswhich is a considerable part of thethree years' terms of impnsonment 40 In the result this appeal is allowed and the appellant is discharged Appeal allowed 9