Court dismisses appeal on grievous harm conviction where appellant chose self-defense over lawyer.

[*11].1972 April 13

(TRIANTAFYLLIDES, P., A. LOIZOU, MALACHTOS, JJ.)

APPELTATE JURISDICTION

Evripides Christou,

Appellant,

V.

The Police,

Respondents.

(Criminal Appeal No. 3333)

Constitutional Law - Article 12.5(c) of the Constitution - Right to be defended through a lawyer of one’s own choosing - Failure of advocate to turn up at the trial – Appellant not applying for an adjournment, in order to be enabled to instruct another advocate, but choosing to defend himself in person - No violation of aforesaid right.

Criminal Law - Grievous harm - What constitutes grievous harm - Section 4 of the Criminal Code, Cap. 154 – Painful fractured rib resulting in hospitalization for two days - An injury within the definition of “grievous harm” in the said section 4.

Criminal Procedure - Trial in Criminal Cases - Self-defence - To be disproved by prosecution - Questions as appear to the trial judge properly to arise upon, the evidence to be dealt with even though the defence has not raised them - Issue of self-defence not raised by appellant nor was there any evidence as to self-defence - In the circumstances this was not a case in which either the prosecution had to disprove self-defence or the trial Court had to deal with such a matter.

Grievous harm - See under “Criminal Law”.

Self-defence - See under “Criminal Procedure”.

Trial in Criminal Cases - See under “Criminal Procedure”.

L. Clerides with E. Lemonaris, for the Appellant.

M. Kyprianou, Senior Counsel of the Republic, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES. P.: The appellant has appealed [*12] against his conviction of the offence of causing grievous harm, contrary to section 231 of the Criminal Code, Cap.154.

Before the trial Court he appeared without counsel and so he conducted his own defence himself.

Counsel who appeared for him today, in this appeal, have done their best to present whatever could he said in his favour.

It has been submitted that the appellant was deprived of his constitutional right, under Article 12.5(c) off the Constitution, to be defended “through a lawyer of his own choosing”: The position appears to be that before the date of the trial the appellant had retained, and paid, an advocate to appear for him; as, however, this advocate failed to turn up at the trial, the appellant chose to defend himself in person; he did not apply for an adjournment in order to be enabled to instruct another advocate. In the circumstances we fail to see how it can be validly said that the appellant is the victim of a violation of Article 12.5(c).

Another contention of appellant's counsel has been that the injury suffered by the complainant, namely a fractured rib, though a painful one and though, together with other less serious injuries, it caused his hospitalization for two days, was not “grievous harm” within the meaning of this expression as defined in section 4 of Cap. 154, because it was not really serious bodily harm.

The definition of “grievous harm” in section 4 reads as follows: - [*13]

“’grievous harm’ means any harm which amounts to a maim or dangerous harm or seriously or permanently injures health or comfort or which is likely so to injure health or comfort, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense”.

In view of the particular circumstances of this case we are in agreement with the learned trial judge that the fractured rib of the complainant, which was painful and made him stay in hospital for two days, was an injury which did seriously “injure”, inter alia, the “comfort” of the complainant; and, therefore, it was an injury within the definition of “grievous harm” in section 4.

The last point which was raised in favour of the appellant is that the trial judge, having disbelieved the version of the appellant, to the effect that he did not assault at all the complainant but that it was the complainant who assaulted him, failed to consider whether this was a case in which the appellant was entitled to be acquitted on the ground of self-defence:

As has been, indeed, pointed out in the case of Wheeler, 52 Cr. App. R, 28, when an accused puts forward a justification such as self-defence the prosecution must disprove it before a verdict of guilty can be reached (and Wheeler was referred to in, inter alia, Miliotis v. The Police, (1971) 11 J.S.C., 1398, at p. 1403). Also, in the case of [*14] Mancini v. Director of Public Prosecutions,

28 Cr. App. R. 65, it was held that, whatever the line of defence adopted at the trial, such questions as appear to the trial judge properly to arise upon the evidence have to be dealt with, even though the defence has not raised them. But, in the present case, the issue of self-defence was not raised by the appellant in defending himself; he denied having assaulted at all in any way the complainant, both by his statement to the police and in a statement from the dock at the trial; nor was there any evidence as to self-defence. In the circumstances we are of the view that this was not a case in which either prosecution had to disprove self-defence or the trial Court had to deal with such a matter.

For all these reasons this appeal fails and is dismissed; but as this is a case in which it appears that the appellant in committing the offence concerned was to some extent provoked, due to a dispute over water rights with the complainant, we have decided to direct that the sentence of six months' imprisonment, which was passed on the appellant, should run from the date of conviction.

Appeal dismissed.