Supreme Court dismisses appeal against aggravated assault conviction where appellant's conduct provoked the incident.

[*158] 1970 February 3

(VASSILIADES, P., JOSEPHIDES, LOIZOU, JJ.)

APPELLATE JURISDICTION

Dioghenis Stylianou,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3144)

Criminal Law - Conviction for aggravated assault, public insult and for conducting himself in a manner likely to cause breach of the peace - Sections 243, S9 and 188(d) of the Criminal Code Cap.154, respectively - No reason justifying interference with trial Court’s findings.

Sentence - Sentence on count arising from the same set of facts upon which conviction on 3 other counts was based.

E. Odysseos, for the Appellant.

C. Antoniades, Counsel of the Republic, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by:-

VASSILIADES, P.: We find it unnecessary to call on counsel for the Police.

The appellant complains against his

conviction in the District Court of Nicosia sitting at Morphou, [*159] on a count for aggravated assault, contrary to section 243 of the

Criminal Code, Cap, 154; two counts for public insult, contrary to section 99 of the Code; and a count for conducting himself in a manner likely to cause breach of the peace, contrary to section 188(d) which was added by the trial judge at the end of the trial in substitution for a count for public disturbance, contrary to section 95 of the Code.

The appellant, a young man of 24, passing the street outside the house of the complainants in the village of Kato Pyrgos, at about 6.30 in the evening of March 30, 1969, stopped for a moment, cleared his throat in a meaningful manner and spitting in the direction of the open door of the complainants, went on his way towards his house some 20 yards further away. The complainants, a middle aged couple and their 24 year old daughter, a spinster, who were sitting at the time in their hall near the open door, taking the conduct of the appellant as an insult, came out into the street, and demanded an explanation. The mother, aged about 50, taking apparently more initiative, was struck by. the appellant down to the ground, with the result of a vaginal haemorrhage. The usual on such occasions, shouting and commotion followed.

The appeal is mainly directed against the findings of the trial Judge; and the complaint is, mainly, the contention that the Judge should not have accepted the evidence of the witnesses for the prosecution in view - of inconsistencies and discrepancies in their testimony. [*160] It was unsafe, counsel argued, for the trial Judge to act on such evidence.

It is not in dispute that the incident did take place; and counsel for the appellant fairly and properly conceded that the incident was provoked by the conduct of his client. Counsel’s submission was that the conduct was not such as to provoke a reasonable person in the way in which it provoked the complainants.

We find it unnecessary to enter into this rather academic matter. The conduct of the appellant at the material time, was such as to provoke the complainants in the way it did. That caused the incident in the course of which according to the findings of the trial judge, the appellant used the insulting words complained of; and assaulted the female

complainant, a woman about twice the age of the appel lant. Without entering into detail, which, we find unnecessary to

do, we think it is clear that there was ample evidence upon which the trial judge could reach his findings; and the argument advanced on behalf of the appellant did not show to us any reason for interfering with those findings. That decides the appeal. (See Imam v. Papacostas (1968) 6, J.S.C. 626; Lambros Lazaron v, The Police (1969) 12, J.S.C. 1408).

There may be some justification for the complaint against the addition of a new count at that late stage of the proceedings. But, we do not think that that made any difference either to the conviction or the sentence on the other counts. And whether count 4 remains on record or is [*161] set aside, it makes no practical difference to the conviction or to the sentence. We do not propose to interfere.

In the circumstances, however, we take the view that the trial judge need not have passed any sentence on count 4 which arises from the same set of facts upon which he based the conviction on the other 3 counts.

Subject to this, we think the appeal should be dismissed; and it is dismissed accordingly.

Appeal dismissed.