(1989)1989 August 4 (A lOUOU Ρ DEMETRIADES KOURRIS JJ] SOTERIS GEORGIOU ATHINIS, Appellant, ν THE REPUBLIC, Respondents (Application in Cnminal Appeal No 4867) Appeal — Fresh evidence — The necessary prerequisites that mustbe satisfied before leave to adduce such evidence is given —The evidencecould not havebeenobtained with reasonablediligence for useatthetnal itmustberelevant to theissues, itmustbecredible and itmustbesuch as, ifaccepted itwould createareasonabledoubt as 5 to theguilt of the appellant Jurisprudence — Stare decisis doctrine of—Observations regarding binding forceof decisions of Court ofAppeal mcnminal and in civil cases This isthesecond application filed by theappellant forleave to 10 adduce fresh evidence atthe hearing ofthe appeal The facts neea not be summarized The application wasdismissed on theground thai the evidence, sought to beadduced,couldhave been obtained with reasonable diligence for useatthe tnal Cases referredto Application dismissed 15 R ν Taylor[1950] 2All ΕR 170 Kambule ν R (1950]A C 379, " R ν Norman [1924]2 K B 315, Simadhiakos ν ThePolice, 1961 C LR 64, 20 Kohasν ThePolice
(1963)1 C L R 52, Pounkkos (No 2)ν Fevzi,1962 CLR 283, Felekkisv ThePolice
(1968)2 CLR 151, Petri ν ThePolice
(1968)2 C L R 40, Anstidouv The Police
(1973)2C L R 244, Zevedheosv TheRepublic
(1978)2 CLR 47, Constantmides ν The Republic
(1978)2CL R337, R ν Parks[1961]3AllΕR633, Skone ν Skoneand Another [1971]2ΑΠ ΕR 582 214 25 2 C.L.R. Athinis v. Republic Application. Application by the appellant for leave to adduce further evidence. Chr.Pourghourides, for the applicant. 5 M. Kyprianou, Senior Councel of the Republic for the respondent. A.L01Z0U, P.:Thejudgment oftheCourtwillbedeliveredby Mr.JusticeA.KOURRIS. KOURR1S, J.: This is an application to hear further evidence 10 under Section 146(b) of the Criminal Procedure Law. Cap. 155, and under Section 25
(3)of the Courtsof Justice Law, 1960,(14/ Thisisthe second application filed by the appellant asking the Supreme Court to hear further evidence under the same Section oftheCriminalProcedure Law,andunderthesameSectionofthe CourtsofJustice Law 1960. Theappellant wasconvictedbytheAssizeCourtofLimassolby majority, together with accused 1,who isnot an appellant before thisCourt, on the following four counts:Count 1:Conspiracytocommit afelony, i.e.tocausethe death 20 ofYiannakis Omirou, of Limassol; Count 2:Attemptto killYiannakisOmirou, of Limassol; Count 3: Attempt to destroy theproperty byexplosives, i.e.by putting explosive substances on the driver's seat of motor carJZ 725; and, 25 Count4:Possessingexplosivessubstanceswithoutlicencefrom theinspector of explosives. Appellant, on 14.4.1987, was sentenced to four years' impri, sonment on count 1; six years' imprisonment on count 2; three years'imprisonment oncount3and, fouryears'imprisonment on 30 count4.Sentencesof imprisonment torun concurrently. The appellant appealed against his conviction and during the hearing of the appeal, asa result of some observations made by one of the judges, counsel for the appellant applied for an adjournments so that he could cause careful examination of 35 Exhibits62 and 37 and he stated that after such examination the 215 Kourris J. Athinis v. RepubUc
(1989)appellant might seek the leave of the Court to produce fresh evidence in connection with the said exhibits. The adjournment was granted and counsel for theappellant filed in due course an application inwhich heapplied thattheSupreme Courthear fresh evidence namely of R.F. Ruddick, Advisor in Medical Photography tothe London Hospital Medical College. 5 The facts relied upon were set out intheaffidavit of the brother of the appellant, namely Melios Athinis, stating that after careful examination Mr. Ruddick reached the conclusion that the screwdriver, exhibit 17, and the screwdriver which appeared in 10 photograph, exhibit 62, were notone andthesame thing. Inother words, photograph, exhibit 62, showed another instrument than the one which was produced in Court. In paragraph 5 of the affidavit it was stated thatMr.Ruddick was of theopinion thatthe allegation set outinthehearing thatthelegsof thescrewdriver was 15 reduced from theacid is notcorrect. The affiant also stated in .lis affidavit that, iftheevidence ofMr. Ruddick were to be accepted as reliable, then theevidence of the most important witness for the prosecution, who is Popi Kanari, should be discarded. The respondent opposed the appellant's application on the ground thattheevidence sought becalled was availableatthetrial and could have been adduced then,andthattheguiltof appellant would have been-established even if the evidence sought to be produced hadbeen giventogetherwith otherevidence atthetrial. 25 The Supreme Court for the reasons given in his judgment on| 19.1.1989dismissed the application. The present application is again based on the affidavit of the brother of the appellant stating that Mr.Ioannis M. Lovarides of Nicosia,, former director of the Government Laboratory, has 30 informed the Defence that at all meterial times there were files (λίμες) at the Government Laboratory. Furthermore,the affiant under paragraph
(4)of his affidavit states that Lovarides has informed the Defence thatalso theordinary file,called «ρινί», was suitable for the purposes of using it in the examination of the 35 screwdriver.He said that this information was conveyed to the Defence from Lovariders on.10.5.1989 and tends to contradict P.W. 22 Popi Kanari,who said inher evidence before theAssize Court of Limassol as follows:216 20 2 C.L.R. Athinis v. Republic Kourris J. «Εγώ δεν έχω ειδικές λίμες. Υπάρχουν ειδικές λίμες ττου δεν αφήνουν απομεινάρια». By thisapplication counsel for theapplicantapplies notonly for an order directing that fresh evidence be given by Ioannis 5 Lovarides but, also for an order that fresh evidence be given by R.F. Ruddick if, the Courtdecides to grant the relief prayed, that fresh evidence be given by Lovarides. Again counsel for the respondent opposed the appellant's application on the same grounds, set outin the opposition tothe 10 firstapplication,totheeffect that,theevidence sought tobe called was available atthetrial and could have been adduced then,and thatthe guilt of theappellantwould have been established evenif theevidence sought tobe produced hadbeen giventogetherwith the otherevidence atthetrial. 15 It should be noted that the present application was filed after counsel for the appellant and counsel for the respondent completed their addresses to the Court and the case was adjourned tohearcounsel for the appellant in reply. Counsel for theapplicantcontendedthattheCourtisnotbound 20 by its previous decision given on 19.1.1989*1 and this on the principle of stare decisis that the Court can deviate from its previous decisions. Insupport ofhiscontentionhe cited the cases of R. v. Taylor[1950] 2All E.R.170, GideonKambule v. R. [1950] A.C.379 and R. v. Norman [1924] 2 K.B. 315. *25 Inthe case of R. v. Taylor itwas decided that, although incivil matters under the rule of stare decisis, the Court of Appeal considered itself boundby itsown decisions,thesame rule didnot apply in criminal appeals where the liberty of the subject was concerned, and consequently, if, inthe opinion of the FullCourt 30 thelaw hadbeen misapplied ormisunderstood, intheearlier case would reconsider thematter. Itthus, appears thatacourtisboundby.its own decisions unless :the law had been misapplied or misunderstood inan earlier case Iandtherehasbeen nosuchsubmission by learned counsel for the 35 appellant. Theprinciplesgoverning theexercise ofthepower tohear fresh evidence were expounded by this Court in several cases (see Simadhiakos v. ThePolice,1961 C.L.R.64; Koliasv. ThePolice,
(1963)1C.L.R. 52;Pourikkos (No.2) v. Fevzi,1962 C.L.R. 283; 40 Felekkis v. The Police
(1968)2 C.L.R. 151; Petriv. ThePolice, *Reportedatp. 9inthispartinfra. 217 KotnTfe J. Athinis v. Republic
(1989)
(1968)2 C I..R.40;Aristidou v. The Police,
(1973)2C.L.R.244, Zevedheos v. TheRepublic,
(1978)2C.L.R.47;Constantinides v. Republic
(1978)2 C.L.R.337. With regard toCypruscases,counsel fortheapplicantrelied on the case of Zevedheos v. The Republic,
(1978)2 C.L.R.47 and 5 Constantinides v. The Republic,
(1978)2 C.L.R.337. ThefactsintheZevedheoscasearedifferent from thefactsinthe presentcase.Inthatcasewitnesses,whohadgivenevidenceinthe casebefore theSupreme Court,gaveevidenceinsubsequent trial and itwas sought to hear such witnesses further because of such 10 evidence. Withregardtothe Constantinidescasecounselfortheappellant drewourattentiontoapassageadopted from thecaseofR. v.Perryand Hervey. Also counsel for the appellant cited various English cases 15 expoundingtheprincipleswhenacourtcanhearfresh evidencein an appeal. The corresponding legislativeprovisionsinEngland areSection 9 of the Criminal Appeal Act 1907, which was replaced later by Section 23 of the Criminal AppealAct 1968.Such provisionsare 20 similar to but are not identical with our own relevant provisions; but guidance maybe derived asthe objects ofthe said provisions are thesame. Guidance may be derived from the caseofR.v. Parks,[1961] 3 All E.R. 633, where the principles applicable in relation to the 25 hearingof evidence onappeal,ina criminalcase,underSection9 of theCriminalAppeal Act, 1907,were stated tobe as follows: (
- i)The evidence sought to be called must be evidence which was notavailable atthe trial; (ii)The evidence must be relevanttothe issues; (iii)Itmustbecredibleevidence inthesenseofbeingwellcapable ofbelief;and (
- iv)The court will, after considering that evidence, go on to considerwhethertheremighthavebeenareasonabledoubtinthe mindsofthejuryastotheguiltoftheappellantifthatevidencehad 35 been given together with the other evidence atthetrial. The above approach is similarly applicable in civil cases (see Aristidouv. The Police, (supra)atpage 246). 218 30 2 C.L.R. Athinis v. Republic Kourris J. In the case of Skone v. Skone and Another, [1971] 2 All E.R. 582, the following wasstated at page586: 5 10 «...tojustify the reception of fresh evidence or a newtrial, three conditions must be fulfilled: first, itmust be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive:third,theevidence mustbesuch asispresumably to bebelieved, orinotherwords,itmustbeapparently credible, although itneed not be incontrovertible.» Counsel for the appellant referred us to various English 'authorities where the paramount consideration, whether to exercise our discretion in favour or against the appellant is how 15 best to serve the interests of justice. But, another paramount consideration which should alwaysbe bome in mind isthe need forfinality in litigation. We have carefully examined the authorities cited to usand we havecarefully perused therecord oftheproceedingsandwehave 20 bome in mind all that we have heard from counsel during their addresses tothe Court.Wefind that one ofthe mostvitalissuesin the whole trial was the connection of the instrument in question with the commission of the offence and the complicity of the appellant and the veracity of the witnesses who testified in 25 connection withthem.These witnesseswere subjected tolengthy cross-examination aboutthispieceofevidence and thepossibility of evidence to contradict their stafement and disprove their veracity should have been reasonably foreseen. The defendants hadallthetimetocausethesaidexhibittohaveitexaminedbythe 30 experts at such stage of the proceedings. Also, the evidence of Lovarideswhichissoughttobeproduced underthisapplication to hear fresh evidence was available to the Defence all the time. Therefore, the factsofthisapplication donotsatisfy the testofthe authorities. 35 Inthe present casetheapplicanthasfailed tomeet thefirst test, namely that it must be shown that the evidence could not have been obtained withreasonable diligence foruseatthetrialand for that reason alone thisapplication must fail. Forthese reasons,the application isdismissed. 40 Application dismissed. 219