clr/1988/1988_2_55.pdf

(1988)Court order On theday, when thewife, invirtue of such order, was entitled totake thechildren,she went, accompaniedby herfather,in order to meet her husband and take the children The appellant refused to give up the children on account of the presence of his father-in-law An argument ensued and, finally, the appellant attacked hiswife ina ferocious manner Thewife's father tnedto free hisdaughter by using anironbar,buttheappellantoverpowered him and, then,attacked himwith thesame iron bar 5 Counsel for theappellant putforward vanous complaints,namely (a)That the tnal Court wrongly refused to order separate tnals on 10 each of thecounts inviewof thefact thatthewife's evidence against theappellant onthe countrelating tothe injury of her father was not admissible

1. ic)That the tnal Court wrongly treated the medical evidence a· corroborative of the evidence of thecomplainants Ιΐ> (
2. c)That the Court failed to warn itself of the danger of acting withoutcorroboration ontheevidence of thecomplainants,who had an -nterest to serve (dj That there was no evidence thatthefracture of the renal bone of appellant's father-in-law was due to theassault 20 (
3. e)That the fracture of the renal bone does not constitute a «grievousharm», and (f)That there were vanous discrepancies in thesumming up It must be noted thattherehad been an admission under section 19 of the Evidence Law, Cap 9, as amended by Law 86/86to the 2 5 effect that X-Rays taken at the Nicosia General Hospital on the day following the incident, revealed fracture of the renal bone of appellant's father-in-law That was why theprosecution did notcall any evidence as tothe fracture Held,dismissing the appeal 30

(1)Section 40 of the CnmmalProcedure Law permits the joinder of any number of offences The Court retains a discretion and may disallow the joinder if the interests of justice so warrant The observations in Oueiss ν Republic

(1987)2 C L R 49 as to the remoteness of thelikelihood of prejudice toappreciatetheevidence 3 5 in its proper perspective, where there is no jury, apply with equal force tothe likelihood of prejudice resulting from theadmissibility of evidence on one count thatts inadmissible on another The joinder of count 1and count2 inthesame charge was perfectly warrantedin this case At the end of theday thetrial Judge specifically reminded 40 56 2 C.L.R. Papachrysostomou v. Polic* himself of thefact thattheevidence of thewife was inadmissible on the countfor grievousharm. 5 10 15 20 25 30 35

(2)«Corroboration» is a term of art. It does not of necessity correspond to the Greekterm «ενισχυτική μαρτυρία»used by the trial Judge. The Greek term may, also, mean «supportive» or «confirmatory» evidence. This is the sense in which the trial Judge used theaforesaid term.

(3)As itwas held inMousoulides v.Republic

(1983)2 C.L.R. 336 the interest necessary to warrant extra caution necessary for the evaluation of the evidence of such a witness must be «of kind .... associated with the success of the criminal venture with which the accused are charged. There must be evidence tending to suggest complicityonhispartinthecommissionofthecrimethoughnotsuch as torenderhimanaccomplice inthecommission of the offences». Every witness has,inasense,aninteresttoserve,namely,aninterest of being believed. However, what is meant by witness having an interest toserve is a witness, who, though notan accomplice,is on theborderline of anaccomplice.

(4)The object of s.19 of the Evidence Law 86/86, is to make provision for the admission of relevant facts in the interest of the expeditious conduct of criminal proceedings. The object of the admission in this case was to obviate the need for oral medical evidence as to internal injuries suffered by the complainant. Inthe light of such admission and the absence of any suggestion to the complainant that the fracture of his nose had originated from any othercause,itwas inevitable for theCourtto concludeas itdid.

(5)Grievous harm is comprehensively defined by s.4 of the Criminal Code and includes, inter alia, any serious injury to any externalorinternalorgan,membraneorsense.Afracture oftherenal boneis,by itsverynature,aserious injury. ThisCourtcannotuphold thesubmission of counsel onthisscore either.

(6)Ajudgment may be reasoned inavariety of ways.Thereisno rule as to uniformity in the style of judgment. The need to reason a judgment does not oblige the Court to reproduce the evidence or refer toeverydetail of it. Thesumming up of thiscase was perfectly adequate. Appeal dismissed. Casesreferredto: R. v.BaskervUle, 12 Cr. App. Rep. 81; 40 Wamava v. ThePolice

(1973)2 C.L.R. 317; 57 Papachrysostomou v.Police

(1988)Foumaris v.TheRepublic

(1978)2C.L.R.20; Oueissv TheRepublic

(1987)2CL.R 49; Mousoulidesv.TheRepublic

(1983)2C.L.R.336; R. v. Pratter, 14Cr.App.Rep. 83; Zisimides v.TheRepublic

(1978)2C.L.R.382, 5 Papadopoulosv. Stavrou

(1982)1 C.L.R.321; Foumidesv.TheRepublic

(1986)2C.L.R. 73; PsarasandAnotherv.TheRepublic

(1987)2C.L.R.132. Appeal against conviction. Appeal against conviction by MichalisPapachrysostomou who 10 was convicted on the 2nd February, 1987 atthe DistrictCourtof Larnaca (Criminal Case No.2587/87) ononecountofthe offence of causing grievous harm contrary to section 231 of the Criminal Code Cap. 154 and on one count of the offence of occasioning actual bodily harm contrary to section 243 of the Criminal Code 15 and was sentenced by Arestis, D.J. to six months' imprisonment on count 1and to four months*imprisonment on count 2. M. Cleopas withG. L. Sawides, forthe appellant. A. M. Angelides, Senior Counsel of the Republic, for the respondents. ^° MALACHTOS J.: Thejudgment of the Court willbe delivered byPikis, J. PIKIS J.: Michael Papachrysostomou appeals against his conviction by the District Court of Larnaca on two counts namely, (

1. a)Unlawfully causing grievous harm to Costas Sideras, his father-in-law (contrary to s.231 of the Criminal Code - Cap.154) and (
2. b)Assault occasioning actual bodily harm to Miranda Papachrysostomou, his wife (contrary to s.243 of the Criminal 30 Code-Cap.154). Theaccused had denied the chargesand maintained thatat no stage did he assault either his wife or his father-in-law. On the contrary, he wasthe victimofseparate attacksbyboth of them in 58 25 2 C.L.R. 5 1C 15 20 25 30 35 Papachrysostomou v. Police Plkls J . the course of which he did no morethan attempt toward off their assaults.The injuries of the complainants were occasioned inthe process of defensive action to stem the attacks. Fortheir part the complainants testified that they were ferociously assaulted bythe appellant after an altercation between the appellant, on the one hand and, his wife and her father, on the other, respecting the exercise of therightofthe wife to accesstoher children. There wasalotofwranglingbetween thespousesastothecare andcontroloftheirtwoinfantdaughtersfollowingthebreak-upof their marriage in February, 1985. By virtue of an order of the District Court of Nicosia, care and control of the children was entrusted to the appellant subject to a right of access to the wife once a week (everyWednesday), when the children would be in hercarebetween 1p.m.and 9p.m.The spouses livedapart-the appellant at Athienou and his wife at Nicosia. Following a prior arrangement, Miranda Papachrysostomou travelled to Athienou, at a prearranged location outside the village, to collect her children.The wife wasaccompanied byherfather. The appellant objected tohispresenceand onthataccount refused accesstothe mother.Atthetrialhegaveasreason forhisobjection, hisfearthat the presence ^of anyone other than his wife might create an unwelcome precedent. Infuture, he said, hiswife might come to collect the children accompanied by a boyfriend, a statement severelycriticised bythetrialJudge.Insteadofallowinghiswifeto takethe children,hedroveaway inthedirection ofthevillage.He was followed by the car driven by his father-in-law in which his wifetravelled aspassenger.Whentheappellant broughthiscarto a standstill, somewhere within the village, they stopped behind. The wife alighted and approached the car of the appellant with a view totaking the children. The children were seated atthe back of the car of the appellant with the rear doors locked. When Miranda found out that the rear doors were locked she made an effort to come close to the children by opening the front passenger's door. The appellant resisted the attempt and, eventually, alighted from the car. The facts founding the charges occurred in the process of resistance to the demand of Miranda that she be allowed access, and theattackallegedlymounted bytheappellant, firstagainsthis wife and then against his father-in-law. In the contention of the 40 wife the appellant, after alighting, embarked on a fierce attack on her asa result of whichshe suffered injuries on the left partof the 59 PikJsJ. Papachrysostomou v. Police

(1988)forehead and the occipital region of the head that necessitated stitching,and abruiseontheleftzygomaticarrow.Inthecourseof the attack the appellant seized her from the hair and banged her head againsta nearby street-pole. Her father feltimpelled to stop the attack; he picked up an iron bar that lied on the ground and 5 armed with it he attacked the appellant to let go of his daughter. He was soon overpowered and disarmed by the appellant - a person of powerful physique. Thereupon, the appellant went on the attack and assailed Costas Sideras with the same iron bar he had seized from his possession, as a result of which the latter 10 suffered a number of head and facial injuries that necessitated stitching. In consequenee of the injuries the renal bone was fractured. Subject to a minor reservation the trial Court accepted the evidence of the complainants whereas it rejected that of the 15 appellant. Notonlytheversion oftheappellantwashardtoaccept inthe context of therealitiesof thecase,buttheCourt observedit conflicted with medical findings, too. On the other hand, the medical evidence tended to reinforce, in the judgment of the Court, thetestimonyofeachoneofthecomplainantsinasmuch as 20 theinjurieswere,onthewhole,consistentwiththeblowsallegedly delivered tothem by the appellant. Counsel fortheappellantchallengedtheverdictasfactually and legally unsound. The refusal of the application for a disjoinder of the trial on counts 1 and 2, in view of the inadmissibility of the 25 evidence ofthewife on the countpreferred against herfather led, as counsel argued, to a mistrial because of its unavoidable prejudicial effect on the outcome of the case. Secondly, the Judge failed to administer a warning respecting the risk inherent in acting on the evidence of the complainants 30 giventheinteresttheyhadintheoutcome oftheproceedings.The appellant himself had lodged complaints with the Police against them. The treatment, on the otherhand, of the medical evidence as corroborative of the testimony of the complainants was erroneous in view of the elements necessary to found 35 corroboration -analysed inthe time -honoured decision of R. v. Baskerville.* Thirdly, the injuries suffered by Costas Siderasdid not amount '(12Cr.App.Rep.8J). 60 2 C.L.R. Papachrysostomou v. Police Plkis J. to grievous harm,according to the definition of such harm by s.4 of theCriminal Code and,theanalysis of the conceptof grievous harm by the well - known work of GlanvilleWilliams -Text Book of CriminalLaw, 1st ed.,p.153. Moresignificantly still the finding 5 of theCourtthatCostasSiderassuffered arenalfracture, asa result of the injuries inflicted upon him by the appellant, was unwarranted by the material before the Court.The suggestion is that the admission made on behalf of the appellant as to a renal fracture, did not imply that the fracture had been suffered in the 10 course of the incident under review; notwithstanding external signsof injury tothenose. 15 20 25 30 35 In addition to the misdirections enumeratedabove, the verdict was also liable to be set aside because of misappreciation of the evidence or, more accurately, failure to appreciate itin a correct perspective, the failure going to the root of the conviction rendering itunreliable orunsatisfactory inthesense of Vamava v. The Police*.Proper appreciation of the evidence could not but leave a lurking doubt in the mind of the Court, such as was entertained in Foumaris v. Republic**, causing the Court to quash the conviction'. Section 40 of the Criminal Procedure Law permits the joinder of any number of offences. The amenity to effect suchjoinder isfar greater than thatpermittedby theEnglish Indictments Act 1915 (s.4 r.3 of the First Schedule to the Act)in that the law does notpostulate as a prerequisite thatthe offences joined form a series. The Court retains a discretion and may disallow the joinder if the interests of justice so warrant. When moved toorder separate trials on counts 1and 2,the learned trial Judge did advert to the principles governing the exercise of his discretion, to order such severance in order to guard against possible prejudice totheappellantarising from theadmissibility of evidence of one countthatisinadmissible onanother.He derived guidance for the ascertainment of the relevant principles bearing on the exercise of his discretion, from the following passages of CriminalProcedure in Cyprus***: «The mere fact thatevidence inadmissible on one countof theindictmentmaybe admissible inrespect of anothercount, is not in itself a ground for ordering separate trials but may ί d a ground where itwould be difficult, inthiscourse of a '({1973)2C.L.R. 317). "(

(1978)2C.L.R.20). "'(Pages57-58respectively) 61 Plkls J . Papachrysostomou v.Police

(1988)summing-up, to earmark the evidence and its bearing on individual counts, posingriskfor thejury,when considering theevidence,tobeunabletodisregardevidenceinadmissible ononecountbutproperly admittedinrelationtoanother. Ifthisisalegitimatecourseforatrialbeforeajury,afortiori, 5 it may be adopted with more immunity before a Judge or Judgessittingwithoutajury,asitcanbeconfidentlyexpected, giventheirtrainingandexperience,tobeinapositioi.todraw theline,wheresuchalineshouldbedrawn,intheinterestsof justice.Inany event, thejoinder ofsuchcounts,evenwhere 10 improper, willbenogroundforquashingaconvictionwhere suchmisjoinderhas,caused noprejudice totheaccused.» The appreciation of inherent differences between trial before professional judges and trialbefore ajudgeandjuryreflected in the above passage, is bom out by the recent decision of the 15 Supreme Court in Oueiss v. Republic*. The likelihood of prejudice occurring on account of failure of the Court to appreciatetheevidenceinitsproperperspectiveis,itwaspointed out, remote in Cyprus in view of the professional status of the judgesoffact, expectedbytrainingandexperiencetoappreciate 20 thecaseinitstrueevidentialperspective.Theaboveobservations were made with regard to the likelihood of prejudice occurring from the joinder of offences and the admissibility of evidence againstoneaccusedwhichisinadmissibleagainstanother.Forthe same reasons they apply with equal force to the likelihood of 25 prejudice resulting from the admissibility of evidence on one countthatisinadmissibleonanother. The joinder of count 1 and count 2 in the same charge was perfectly warranted in this case. The facts founding the two chargeswere inextricably connected and formed partof aseries 30 thatwasvirtuallyimpossibletoseggregatewithoutdamagetothe fabricofthecasefoundingeithercount.Thedisjoinderwouldnot onlycausemultiplicityofproceedingsbutmoreimportantlystillit wouldmakeitdifficult fortheCourttoappreciatetheevidenceon eithercountinacorrectfactualperspective.Attheendoftheday 35 thelearnedtrialJudgespecificallyremindedhimselfofthefactthat the evidence of the wife was inadmissible on the count for grievousharmandinpointoffactreferred totheevidence ofthe two complainants separately, in order to define the evidential framework of the case for the prosecution on each of the two 40 *{1987)2C.L.R49.56. 62 2 C.L.R. ' Papachrysostomou v. Police Pilda J. counts.Hencewe dismiss theappealtotheextentthatitisdirected against the joinder of offences and the refusal of the Court to separate themanddirectseparate trials. 5 Witness with an interest toserve theposition ofthecomplainants - Corroboration: InMousoulides v. Republic* the Courtreviewed theposition with regard towitnesses with an interesttoserve and thecaution necessary intheevaluation of theirevidence.** Itwas pointedout thatnotevery witness who mayharbouranulteriormotive canbe 10 regarded as awitness with aninteresttoserve Furthermore,such a witness should not be assimilated toan accomplice nor should anidenticalwarning tothatwarrantedinthecase oftheevaluation of the evidence of an accomplicebe given.Theinterest necessary to warrant extra caution necessary for the evaluation of the 15 evidence of such a witness mustbe «of a kind associated with the success of the criminal venture with which the accused are charged. There must be evidence tending to suggest complicity on his partinthecommission of the crimethough notsuch as to render himan accomplice inthecommission of the offences.» 20 It is unnecessary to debate the matter further for under no conceivable circumstances could either complainantqualify as a witness with an interesttoserve. Certainlythey had aninterestin beingbelieved by theCourtasevery complainanthasinacriminal case. But thatdoes not renderthemwitnesses with an interestto 25 serve. They had, to make it clear, no interest in their being assaulted by theappellantorinthesuccess ofthatventure.Onthe contrary, they were the victims of it. Learned counsel failed with respect,tomakeacleardistinctionbetween theinterestthat every witness has inbeing believed by theCourt,notleastasamatterof 30 self respect tohimself,and thenatureof the interestnecessary to bnng himontheborder-line of anaccomplice. 35 Another criticism of the judgment made by counsel affecting corroboration, is directed at the finding of the Court that the evidence of the complainants «ενισχύεται» by the medical evidence. The Greek expression «ενισχυτική μαρτυρία»is not necessarily synonymous with corroborative evidence -a termof '

(1983)2CLR 33o "(See.R ν Pratter, 14Cr App Rep 83.andZisimidesν Republic

(1978)2C L R382) 63 Pikis J. Papachrysostomou v. Police

(1988)art inEnglishlegalterminology.TheGreekexpression isequally apttoconveythenotionofconfirmatory orsupportiveevidence. Inourjudgment itwasinthissensethattheexpressionwasused. Furthermore, the Judge did make itclear that he wasleft in no doubt as tothe veracity of the complainants and did record his 5 readinesstoactontheirtestimonybeitintheabsenceofanyother reinforcing evidence. The medical evidence, on theother hand, tended to support the version of the complainants as to the causation oftheinjuriesandequallysignificantlywasinconsistent withtheevidenceoftheappellantonthesamesubject. 10 Before leaving thispart ofthe casewe maycommend totrial courtsthatwhenevertheyuseexpressionsthataretermsofartin legal phraseology, they must take pains to explain whether the expression isusedinthatsenseorinitspopularmeaning. The injuries sustained byCostasSideras-Classification for the 15 purposesoftheCriminalCode: An admission was made before the trial Court under the provisionsofs.19oftheEvidenceLaw-Cap.9(asamendedby Law86/86)totheeffect thatX-raystakenattheNicosiaGeneral Hospitalonthedayfollowingtheincident,revealedfracture ofthe 20 renalboneofCostasSideras.Counselfortheappellantsubmitted that the admission did not connote that the fracture had been causedbytheblowsfound tohavebeeninflictedbytheappellant on the complainant; despite the presence of external marksof injury to the nose. Because of the admission the Prosecutior 25 omitted toadduce evidencerelevanttotheageofthefractureof therenalbone.Theobject ofs.19oftheEvidenceLaw86/86,is tomakeprovisionfortheadmissionofrelevantfactsintheinterest of the expeditious^conduct of criminal proceedings. The facts admitted must be relevant tomatters inissue.The object of the 30 admission inthiscase wastoobviate the need for oral medical evidenceastointernalinjuriessuffered bythecomplainantinthe course of the incident under consideration. In the light of the admission made and the absence of any suggestion to the complainantthatthefractureofhisnosehadoriginatedfromany 35 othercause,itwasinevitablefortheCourttoconcludethatitwas a direct incident of the violence applied bythe appellant to the person of the complainant and find asa fact thatCostasSideras suffered afractureoftherenalbone.Then,counselarguedthatthe injuriesofCostasSiderasdidnotqualifyasgrievousharm.Grievous 40 harmiscompehensively defined bys.4oftheCriminalCodeand includes, interalia, anyseriousinjury toany external orinternal ,64 2 C.L.R. Papachrysostomou v. Police Plkls J. organ, membraneor sense. Counsel acknowledged, on aconsideration of English caselaw that, whethera particular injury issufficiently serious toqualify as grievous for thepurposes of acorrespondingprovision of English 5 legislation, isamatterforthejury. Itwould be difficult toarguethat ajury, uponaproperdirectionastothemeaninginlaw of grievous harm,could notfind thatafracture of therenalboneamounted to grievous harm. Afracture of the renalboneis,by itsvery nature,a seriousinjury. We cannotupholdthesubmission of counselonthis 1Π score either. The Evidence- Findingsof fact: Counsel for theappellant made a wide ranging criticism of the summing-up of the evidence and the findings of the Court. He drew attention, inparticulartowhat,inhissubmission,amounted 15 tocontradictionsorseriousdiscrepanciesbetween theevidenceof CostasSiderasandtwo otherwitnesses fortheprosecution-Mr. and Mrs. Gavriel - thatwere notduly noticed or pondered by thetrial Court. Furthermore,the medical evidence did not tally with the testimony of the complainants, as the Court found but, on 20 the contrary, it was hard to reconcile it with their evidence; especially theabsence of injuries from partsof thebody thatcame under attack. The lapse of memory admittedly suffered by Mr. Sideras after his injuries (the result of a mild concussion) and its inevitable impact upon his testimony went virtually unnoticed; 25 impaired memory, counsel said, invariably affects the quality of the evidence of awitness; thatconstitutesyet anotherreasonthat casts doubts onthesatisfactoriness of theverdict of theCourt. Mr. Sawides candidly acknowledged he had an uphill path to tread, in seeking to persuade the Court to interfere with the 30 findings of the Court respecting the credibility of witnesses. Counselisrightinhisappreciationofthepositioninlaw respecting credibility and primary findings of fact. Itis worth recalling what was said in Papadopoulos v. Stavrou*. The same principles underlie the approach of the Court of Appeal to the review of 35 credibility of wimesses and the making of primary facts in a criminal case {Foumides v.Republic

(1986)2 C.L.R. 73,91). *

(1982)1C.L.R.321,325 - lines16-23: •In reviewing the findingsend ultimatejudgment of the tnalcourt,an appellatecourt must never overlook thatthetrialcourt,livingthroughthe dramaofacaseandfollowing the unfolding of therivalcontentions before it, is in a unique position to evaluate the evidence initsproperperspective. Theliveatmosphereof the trialcourtispre-eminently the forumfor the elucidation of the evidenceand the assessment of itsimpact.* 65 PiWsJ. Papachrysostomou v.Police

(1988)Ajudgment may be reasoned in a variety of ways.There is no ruleastouniformity inthestyleofjudgment.Anysuchrulewould stiffle the individual approach of different members of the Judiciarytothe reasoning oftheirjudgment, sooften beneficial to the development of thelaw.The need toreason ajudgment does 5 notoblige,aswepointedoutinPsarasandAnother v.Republic, * the Court to reproduce the evidence or refer to every detail of it. What isrequired of a court of law « isthat reasons should be given for its decisions and *hose reasons should relate to the law applicable and be referable tothe evidencegiven inthecause,so 10 that itmay appear thattheverdict »snotmerelythereaction ofthe Court to the dispute but warranted bythe law applicable and the evidence adduced.» The summing-up ofthe evidence inthiscase was perfectly adequate whereas the findings of the Court were founded on whatwe conceive toberobustreasoning. 15 Nothing said before us persuades us that there isany room to interfere with the findings ofthe trialCourt affecting credibility or the findings of primary facts resting thereupon. Theappeal is dismissed. *

(1987)2C.L.R. 132. 66