2C.L.R. 1989January 19 (A.LOIZOU,P.,DEMETRIADES.KOURRIS,JJ.) SOTERISGEORGHIOUATHiNIS, Appellant, v. REPUBLIC, Respondent. (ApplicationinCriminalAppeal 4867). 5 10 CriminalProcedure—Appeal —Adducing fresh evidence before the Court of Appeal — The necessary prerequisites— The evidence couldnothave been availableatthetrial, itmust berelevant, itmust be credible,though not incontrovertible,and itmust be such, as if admittedandconsideredalongwiththeotherevidence, itwillcreate areasonabledoubt astotheguiltofthe appellant. The appellant seeks leave to adduce expert evidence relating to one ofthe exhibits,i.e.ascrewdriver.Theevidence of theexpertis to the effect that the exhibit is not the same as the screw - driver showninexhibit62.Ifthisevidenceisaccepted,thenarguedcounsel fortheappellanttheevidence ofPopiKanari,whotestified asexpert fortheprosecution, shouldbe discarded. Having stated the necessary prerequisites for allowing fresh evidence tobe adduced on appeal,the Court, 15 20 Held, dismissingtheapplication:
(1)Oneofthemostvitalissuesat the trial was the connection of the instrument in question with the commission of the offence and the complicity of the appellant and the veracity ofthe witnesses,whotestified inconnection with them. The need to undermine such witnesses' veracity should have been foreseen and, therefore, the exhibitshould have been examined in timebythe experts forthe defence.
(2)Inthelightoftheabovefacts,thiscasedoesnotsatisfy thetest oftheauthorities. Application dismissed. 9 Atbiolav.R«p«bUc «1989) Casesreferredto: Simadkiakosv. ThePolice, 1961C.L.R. 64; Koliasv. ThePolice
(1963)1 C.L.R.52; Pourikkos(No. 2)v.Fevzi, 1962C.L.R.283; Felekkisv.ThePolice
(1968)2C.L.R.151; 5 Petriv.ThePolioe
(1968)2C.L.R.40; Aristidouv.ThePolice
(1973)2C.L.R.244; Zevedheosv. TheRepublic
(1978)2C.L.R.47; Constantinidesv. TheRepublic
(1978)2C.L.R.337; R.v.Parks11961]3AltE.R.633; 10 Skonev.SkoneandAnother[1971]2AllE.R.582. Application. Application by counsel for the appellant to hear further fresh evidence under section 146(b) of the Criminal Procedure Law, Cap. 155 and under section 25
(3)of the Courts of Justice Law, 15 1960 (LawNo. 14of 1960). Chr.Pourgourides, forthe appellant. M. Kyprianou, Senior Counsel of the Republic, for the respondent. A.LOIZOU P.:TheJudgment of theCourtwillbedeliveredby 20 Mr.Justice Kourris. KOURR1S J.: This is an application to hear further evidence under s.146(b) of the Criminal Procedure Law, Cap. 155 and unders.25
(3)of the Courtsof JusticeLaw, 1960,(14/60). TheappellantwasconvictedbytheAssizeCourtofLimassolby 25 majority, together withaccused 1,whoisnotan appellant before thisCourt, on the following four counts:Count 1:Conspiracytocommitafelony, i.e.tocausethedeathof YiannakisOmirou of Limassol; Count2:AttempttokillYiannakisOmirou of Limassol; 30 Count3:Attempttodestroypropertybyexplosives,i.e.byputting explosive substances onthe driver'sseat of motorcarJZ725 and Count4:possessingexplosivesubstanceswithoutlicencefromthe inspectorof explosives. 10 2CUR. Athlnl*v. Republic KourrisJ. Appellant, on 14.4.1987, was sentenced to 4 years' imprisonment on count 1; 6 years' imprisonment on count 2; 3 years' imprisonment on count 3 and 4 years' imprisonment on count 4.Sentences of imprisonment torun concurrently. 5 Appellant appealed against his conviction and during the hearing of the appeal, as a result of some observations made by one of the Judges, counsel for the appellant applied for an adjournment so that he could cause careful examination of exhibits62 and 37 and he stated that after such examination the 10 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 the appellant filed indue course an application inwhichheappliedthattheSupremeCourthear fresh evidence, namely of R.F. Ruddick, Advisor in Medical 15 Photography tothe London hospitalMedicalCollege. Thefactsrelieduponaresetoutintheaffidavit ofthebrotherof the appellant stating that after careful examination Mr. Ruddick reached the conclusion that the screw driver, exhibit 17and the screwdriverwhich appears inphotograph exhibit62,are not one 20 and the same thing. In other words, photo exhibit 62 shows anotherinstrument thanthe one which wasproduced inCourt.In paragraph 5 of the affidavit itisstated that Mr. Ruddick isof the opinion thattheallegation setoutinthe hearingthatthelengthof thescrewdriverwasreduced from theacid isnot correct. 25 The affiant alsostated inhisaffidavit that ifthe evidence ofMr. Ruddickweretobeaccepted asreliable,then theevidence of the most important witness for the prosecution who is Popi Kanaris shouldbediscarded. Finally, inparagraph 9,itisstated that itwill come outthat the appellant wasframed for these offences. 30 On 24.5.1988, the brother of the appellant swore a supplementaryaffidavit inwhichheattachedthefinal reportofthe said Ruddick, concluding that «Although the screw drivers areof asimilartype,thescrewdrivershown inphotograph RFR/1isnot thescrewdriverwhichIexaminedandthephotographisRFR/2». 35 The respondents opposed the appellant's application on the ground that the evidence sought tobe called wasavailable at the trial and could have been adduced then, and that the guilt of appellant would have been established even if the evidence sought to be produced had been given together with the other evidenceatthetrial. 11 Kourrls J. Athtnl· v. Republic
(1989)Theprinciplesgoverningtheexerciseofthepowertohear fresh evidence were expounded by this Court in several cases. (See Simadhiakos v. The Police.1961C.L.R. 64;Koliasv.ThePolice,
(1963)1C.L.R. 52;Pourikkos(No.2) v.Fevzi, 1962C.L.R.283; Felekkis v. The Police,
(1968)2 C.L.R. 151;Petriv. The Police, 5
(1968)2 C.L.R. 40;'tostidou v. ThePolice,
(1973)2C.L.R. 244, Zevedheos v.TheRepublic,
(1978)2C.L.R.47;Constantinidesv. The Republic,
(1976)2C.L.R. 337). The corresponding legislative provisions in England are s.9 of theCriminalAppealAct1907,whichwasreplacedlaterbys.23of 10 the Criminal Appeal Act 1968.Such provisions are similartobut are not identical with our own relevant provisions; but guidance maybederivedastheobjectsofthesaidprovisionsarethesame. Guidance maybe derived from thecaseofR. v.Parks, [1961]3 All E.R. 633 where the principles applicable in relation to the 15 hearing ofevidence onappeal,inacriminalcase,unders.9ofthe Criminal Appeal Act, 1907,werestated tobe asfollows:(i)The evidence sought to be called must be evidence which wasnotavailable atthetrial; (ii)The evidence mustbe relevanttothe issues; 20 (iii) It must be credible evidence in the sense of being well capable ofbelief; and (iv) The Court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in themindsofthejuryastotheguiltoftheappellant ifthatevidence 25 had been given togetherwith the otherevidence atthetrial. The above approach issimilarly applicable in civil cases. (See Aristidouv. The Police,(supra)atp.246). In the case of Skone v. Skone and Another, [1971] 2 All E.R. 582, thefollowing wasstated atp.748:- 30 «The following conditions must be fulfilled in order to render itproper toallowthehearingof evidence on appeal: ... that the evidence could not have been obtained with reasonable diligencefor useatthetrial;second, the evidence must be such as is presumably to be believed, or in other 35 words,itmustbeapparentlycredible,although itneednotbe incontrovertible.» 12 2C.L.R. Athlnlev.Republic KounisJ. 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 best to serve the interests of justice. But, another paramount 5 consideration which should alwaysbe borne in mind isthe need for finality in litigation. Wehave very carefully examined the authorities cited tousby both sides and we have carefully perused the record of the proceedings. Inourcase, perusing the record of theproceedings, 10 we find that one of the most vital issuesin the whole trialwasthe connection of the instrument in question with the commission of theoffence and thecomplicity of theappellant andtheveracityof the witnesses who testified in connection with them. These witnesses were cross-examined at length about this piece of the 15 evidence and the possibility •of evidence to contradict their statement and disprove their veracity should reasonably have been foreseen, and theexhibitshould havebeen examinedbythe experts at such stage of the proceedings. Therefore, the facts of theseapplications do not satisfy the testof the authorities. 20 Inthepresent casetheappellant hasfailed tomeetthefirsttest, namely that it must be shown that the evidence could not have been obtained withreasonable diligenceforuseatthetrialand for that reason alone thisapplication must fail. Forthese reasons, the application isdismissed. 25 Application dismissed. 13