Court admits confession evidence at trial but rejects it at judgment stage for lack of corroboration.

[*517] 1972 June 28

(GEORGHIOU, P.D.C., PIKIS, DEMETRIOU, D.J.)

IN THE ASSIZE COURT OP FAMAGUSTA

The Republic,

v.

Panikos Andrea Zaccheou and Others,

(Cr. Case No. 1217/72).

Criminal law - Evidence - Confession - Admissibility - Confession admitted in evidence after a side trial - Court not entitled, at the stage of considering judgment, to go afresh into the matter of the admissibility of statements but must at such stage decide on their probative value and effect - Need to look for outside evidence to support allegations made in a confession.

Confession - See under "Criminal Law".

Cl. Antoniades, Counsel of the Republic, for the Republic. Accused 4 and 5 present.

N. Pelides, for accused 4.

K. Saveriades, for accused 5.

JUDGMENT

The judgment of the Court was read by:-

GEORGHIOU, P.D.C.: The accused are charged [*518] on a count of conspiracy to Break and enter into the armoury of 331 Regular Regiment of the Rational Guard at Tricomo and steal therefrom arms and ammunition; secondly on a count of breaking into the aforesaid armoury and stealing therefrom the quantity of arms and ammunition referred to in the charge.

Seventeen witnesses testified for the prosecution. Accused 4 made an unsworn statement from the dock and called one witness, Accused 5 gave evidence on oath and called four witnesses.

It is the case for the prosecution that on the night of the 12.1.1972, accused 4 and 5, together with other persons, approached from the rear the premises of the Signals Platoon at Tricomo, where the armouries of the 331 Regular Regiment were situate, gained entrance into the premises through the kitchen-door which was then open, and stole from the arms store a considerable quantity of arms and ammunition, which they loaded on to a car and drove away. It is the case for the prosecution that the offence was committed approximately between 8.00-9.00 p.m., at a time when the building was deserted of all occupants, except for a certain Zaccheos, ex-accused 1.

P.W.5, then a cadet officer of the National Guard at Tricomo, since promoted to a Lieutenant at Boghaz, was the officer responsible for the safe-keeping of the armouries in question. He had the keys to the stores and he was periodically carrying out routine checks to ascertain whether things were in order. It was strictly forbidden to [*519] remove arms and ammunition from the aforesaid stores which were meant for the equipment of a reserve force of the National Guard, in case of need.

Between the 4th and 8th November, 1971, an official inventory of the stores was taken by a team of officers of the National Guard, including P.W. 9. P.W.5 and P.W.9 gave evidence that the stores were found in perfect order, and that nothing was found missing from the stores. During the first ten days of December, 1971, P.W.5 made a personal inspection of the armouries and found that everything was in order. We have had a detailed description of the premises and the stores in particular, from P.Ws. 1, 2, 3, 5 and 12. There were three stores in all, the windows were always kept closed and were properly secured. The door of the main arms store found in the second room to the left as one enters the premises, was locked by means of two padlocks tied together by a ring. The ammunition store was likewise secured by one padlock. The premises were guarded at night time and the guard posts were manned as follows:- There v/as a sentry post in the fore-yard of the premises near the main road which was manned between 6.00 p.m.-6.00 a.m. by five men of the Command Platoon, apparently taking up duty in succession. Five more soldiers were every night assigned to guard the rear of the premises; three of them were from the Signals Platoon and two from the Command Platoon. Prom 6.00 p.m. to 2.00 a.m. of the following morning, the rear guard post was manned by three men of the Signals Platoon, taking up duty in succession and thereafter by two men of the Command [*520] Platoon. The rear guard post was in the telephone room where guards remained posted while on duty.

On the afternoon of the 15.1.1972, P.W.5 visited the stores with a view to surveying the rooms for the purpose of converting them into officers' mess. It was then discovered that arms and ammunition in rooms “A” and “B” of exhibit 2 were in great disarray, cases were missing and arms were upside down. Thereafter an inventory was taken, whereupon it was established in accordance with the testimony of P.W.5 that a considerable quantity of arms and ammunition had been stolen from these two stores. The windows of these two stores were found properly secured and the doors were properly locked. There was no sign of forceful interference with the doors or windows or any other part of these stores. A safe inference is that the culprits opened the doors with keys in their possession and thereby gained entrance into the stores, a course that made unnecessary the use of force to break into the stores.

Having carefully considered the evidence before us, we find as a fact that between the 10.12.1971-15.1.1972, the above-described stores of the National Guard, situate within the premises of the Signals Platoon of the National Guard at Tricomo, were broken into, and the arms and ammunition specified in the charge, of an approximate value of £3,010.000 mils, were stolen therefrom.

Ten men in all served in the Signals Platoon and made use of the dormitory of the premises. P.W. 4 was due [*521] to be on duty at the premises from 8.00 a.m. to 8.00 a.m. the following morning and had guard duties to perform during part of the evening. On the morning of the 12.1.1972 he and a friend of his decided to give a party on the evening of the same day and asked from his corporal, ex-accused 1, permission to absent himself from duty. Ex-accused 1 gave him leave and told him that he would personally relieve him and substitute for him. Therefore, from 8.00 p.m. onwards ex-accused 1 was due to keep guard at the rear guard post of the premises.

P.W.7 told us that before he left the premises on the night of the 12.1.1972 at 7.45 p.m., ex-accused 1 was on guard duty at the rear of the premises. We have already, in a ruling given at the close of the case for the prosecution, given an outline of the endeavours of ex-accused 1 and 2 to see that all soldiers who were in the premises on the night of the 12.1.1972 and all those likely to come to the premises in the meantime, were persuaded to go to the party of P.W.4. some of them despite the fact that they had not been invited to the party and one soldier despite his disinclination to participate in the party on account of feeling very unwell.

We can describe the actions of ex-accused 1 and 2 as a concerted effort on the part of these two men to clear the premises of their occupants for part of the evening. In this way by approximately 8.00 p.m. of the night of the 12.1.1972, there was no one inside the premises of the Signals Platoon other than ex-accused 1, who was on guard duty at the rear of the premise, his post being in the telephone room. Further, there [*522] was a guard at the front of the premises who was, according to instructions, obliged to remain in the fore-yard of the premises and was not allowed to patrol beyond the fore-yard or enter the premises.

Prom the area of his patrol and sentry post, the guard at the front of the premises v/as in no position to follow events or movements at the rear of the premises, something that was the responsibility of the guard on duty at the rear of the premises. In accordance with the evidence of P.Ws. 4, 6 and 7, ex-accused 1 joined himself the party at about 9.30 in the evening, having earlier i.e. just before. 9.30 p.m., rung up P.W, 4 and after a request that one of the participants of the party should go up and relieve him of his guard duties which request was successfully met.

Learned counsel for both accused submitted that the only evidence on which either accused 4 or accused 5 could be convicted, are the statements they made to the Police, exhibits 20 and 8 respectively. Learned counsel for the prosecution agreed with this. It is a fact that apart from these statements, there is practically no other evidence to connect the accused with the commission of the present offence. These statements were admitted after side trials and after a decision of the Court that the prosecution proved affirmatively that the statements were voluntary and that in the circumstances they had been made, the Court should admit them in evidence. It has been argued by learned defence counsel that the Court, should go afresh into the matter of admissibility of these statements and if in doubt as to their voluntariness, or if it comes to the conclusion that they had [*523] been obtained under suspicious circumstances, the Court should rule afresh on the matter of their admissibility and if in doubt on any score, reject them as inadmissible. The case of Demetriades v. Queen, 21 C.I.R., p. 180, was relied upon in support of this proposition.

Learned counsel for the Republic argued to the contrary and submitted that in the light of two recent authorities, one a decision of the Privy Council and the other a decision of the English Court of Appeal (Criminal Division), it is now well-settled that questions of admissibility of evidence are the exclusive province of the judge and the Jury should not be invited to concern itself with questions of admissibility. The cases are Chan Wai- Keung v. Reg., (1967) 1 All E.R., p. 948; and R. v. Burgess,

(1968) 2 All E.R., p. 54. In the former case, Lord Hodson after a thorough review of English authorities on the matter of admissibility of statements, and some Australian cases, giving the unanimous view of the Board, concluded that the admissibility of evidence is not for the Jury to decide be it dependent on fact or law. One decision that was disapproved is that of Burn J. giving the

decision of the Court of Criminal Appeal in R. v. Bass. (1953)1 All E.R., p. 1064. It was unanimously decided that once evidence is admitted, the only question for the Jury to consider with reference to the evidence so admitted, is its probative value or effect. This decision was followed with approval by the Court of Appeal (Criminal Division) in R. v. Burgess, where Lord Parker C.J. giving the judgment of the Court sums up the position at the bottom of p. 55 as follows:- [*524]

"The position now is that the admissibility is a matter for the judge; that it is thereafter unnecessary to leave the same matter to the Jury; but that the Jury should be told that what weight they attach to the confession depends on all the circumstances in which it was taken and that it is their right to give such weight to it, as they think fit".

In Cyprus, the principles laid down in the case of Demetriades have not, in any subsequent decision, been the matter of direct discussion in any of the decisions of the Supreme Court but in our view, the trend of authorities starting from the case of R. v. Sfongaras. 22 C.L.R., p. 113, does indicate that contrary to what was said in Demetriades' case, the duty of the Court at the voir dire is to be first satisfied that the prosecution proved affirmatively the voluntariness of the statement, before the statement is led in. Therefore, the observations of the Supreme Court in the case of Demetriades to the effect that contested statements are led in only on a provisional basis on prima facie proof of their voluntariness have been impliedly disapproved. It is now well settled that only where in the course of a side trial it is proved affirmatively that the statement is voluntary and admissible in every respect, the Court is entitled to receive it in evidence. We are inclined with respect to accept as authoritative the statement of the law laid down in the case of Chan Wai-Keung, both on principle and as a matter of proper practice. Reference was [*525] made with implicit approval to the above English decisions in Loannides v. Republic.

(1968) 11 J.S.C. p. 1321 at p. 1335.

In Cyprus the principle should be all the more accepted, considering that the judge sits without a Jury and is perfectly equipped to decide questions of law and fact in the same spell. One may further suggest that it is generally undesirable to receive evidence on a provisional basis, something that would cloud with uncertainty the outcome and in general proceedings in a criminal trial. Of course as already indicated, in more than one ruling given by this Court in the course of this trial, the Court must in making findings of fact at the end of a side trial, be extremely careful not to make findings that damage the credibility of witnesses and in particular the accused, and must on the matter of credibility preserve an open mind till the-end of the case. (See Loannides v. R., (1968) n J.S.C. p. 1321).

Summing up the position, the Court is at this stage, not entitled to go afresh into the matter of the admissibility of these statements, but the Court must at this stage decide on the probative value and effect of these statements. In so doing, it is relevant to consider, inter alia, the circumstances Under which the statement was made, even though voluntary, as they may affect the weight that may otherwise be attached to the statement. It [*526] is for this reason that it is legitimate, even after a side trial, for counsel to question witnesses in relation to the circumstances under which a statement was made. It is in theory not difficult to envisage circumstances where a man makes a statement voluntarily hut the circumstances under which it was made were such that they may affect the weight that may be accorded to it. For example, the case of a sick man who believes, without any reasonable cause and in the absence of promises, that an admission would precipitate his release, and thereafter makes a false admission, would furnish a good illustration of the principle under consideration.

The principle is that a Court may find a conviction on the basis of a confession made to the Police in the absence of any outside evidence to support the allegations made in the statement provided it is convinced that its content is true. (See Archbold, 37th edition, paragraph 1129 and also R. v. Sykes. 8 C.A.R., p. 233). It is, however, desirable that a Court of law should, before deciding to accept as truthful the contents of a statement, to look outside the statement and see if there is, so far as possible, other evidence that tends to corroborate the allegations made in the statement or tends to show that they are true. It may be said that this has become a universal rule of practice and the principle underlying this approach is, in our view, a salutary one. It is in a way/safety valve to check false allegations made in the statement and more than that, it is a reminder to the investigating authorities, that in the investigation of crime, they must not simply rely on an admission made by the accused. [*527] This rule has found expression in a number of cases. In R. v. Sfongaras.

22 C.L.R., p. 113, Burke C.J. giving the judgment of the Supreme Court, cites with approval the following passage from R. v. Sykes, Cr. App. R. p. 233 at p. 236:-

"..........The first question you ask when you are examining the confession of a man is: Is there anything outside it to show that it was true? Is it corroborated? Are the statements them, made in it of facts so far as we can test them true? Was the prisoner a man who had opportunities to commit the offence? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?"

The need of search for outside evidence to support allegations made in a confession, becomes all the greater where the statement is tretracted as untrue. It is implicit in the above statement that all allegations made in a confession may not be susceptible to corroboration and what is required of the Court is to scrutinize all available evidence to see whether it tends to prove the truthfulness of allegations made in the statement. We are not here concerned with corroboration, as known in other fields of the Criminal Law, for instance corroboration of the evidence of an accomplice, but we are mostly concerned with the verification so far as possible of the correctness of allegations made in the statement. In support of this [*528] position we may cite a passage from the judgment of Vassiliades P. (as he then was) in the case of Kokhinos v. P. (1967) 10 J.S.C. , p. 1082 at p. 1091:-

"The absence of any evidence to verify the story given in the confession, indicates that either no investigations were made for that purpose, or, if made, they produced no positive result".

The trend of authority in Cyprus has been to stress the necessity to look for outside support of allegations made in the statement and the position now prevailing in Cyprus may be summed up in this way: A Court of law should be very reluctant to convict on the basis of a confession simpliciter, without any outside evidence tending to support the truthfulness of allegations set out therein. (See the cases of R. v. Volettos. 1961, C.L.R. p. 169; Petri v. P., (1968) 4 J.S.C., p. 368; Loannides v. R., (1968) 11 J.S.C. 1321; Kokkinos v. P., (1967) 10 J.S.C., p. 1082).

With the above in mind, we shall consider the evidence before us and particularly the weight we should attach to the confessions made by accused k and 5 to the Police, exhibits 20 and 8 respectively.

On the evening of the 25.1.1962 accused 4 was informed by the Police that his house at Tricomo would be searched and was invited to be present during the search. His house was searched by a team of policemen headed by P. S. Prastitis; the search revealed nothing incriminating. Accused was thereafter asked by P.S. Prastitis to accompayy him to the Police [*529] Station for interrogation, whereupon accused followed the police sergeant to Tricomo Police Station. He was left for a short while in the charge-room of the Station and shortly afterwards he was interrogated in the form of question and answer by Supt. Fanis Demetriou and P.S. Prastitis who was recording his answers. The questioning mostly concerned the movements of the accused on the 9th and 12th January, 1972. The accused started with an account of his movements on the 9th and maintained inter alia, that he had no recollection of his whereabouts on the 12th January, 1972. Thereafter, he gave an account of what he does ordinarily in the course of an evening and told the Police that he is the cashier of Nicolaides cinema at Tricomo. Then accused goes on to say that he first learned of the commission of the present offence when his uncle had been arrested and said that he did not know who had stolen the arms from the compound of the National Guard. In short he denied complicity in the crime and denied that he had any knowledge shedding light on the circumstances under which it had been committed. Thereafter accused 4 states that he had recollection of the events of the 12th and remembered that his uncle, on the afternoon of the 12.1.1972, told him that he would want him for something later on in the evening. He then gives an account of the circumstances under which he met his -uncle and a number of other men entered a car and drove in the direction of the scene of the crime. The car was parked at the bookshop of Petsas shown in exhibit 3, whereupon his uncle mentioned that the party was up to steal some arms from the premises of the Signals Platoon. The accused after caution gave a detailed account of the circumstances [*530] under which the crime was committed, how they gained entrance into the premises, where they met Paniccos Zaccheos, son of Londos, in the telephone room together with another soldier in military uniform. Thereafter, he gives a description of the arms store and the circumstances under which the offence was committed.

Accused 4 made an unsworn statement from the dock. In this statement he gives an account of his ordinary night duties at the cinema, the hour at which his duties are over, he denies any complicity in the commission of the offence and maintains that he never visited the interior of the Signals Platoon. It is his contention that that part of his statement which constitutes a confession was dictated to him by the police officers who were obtaining the statement. He called one witness, the manager of the cinema, who testified that accused’s duties normally required him to be at the cinema till

8.15 p.m. The accused was not required to be on duty after the intermission, but he had to account to D.W.1for the receipts either during the intermission or at the end of the performance, between 9.30-10.00 p.m. This witness was in no position to know of the movements of the accused between the hour that the performance started at 7.30 p.m. till the intermission or subsequently if accused did not account to him for the proceeds before the end of the performance. This witness was taking up duty in the projector’s room at the beginning of the performance i.e. about 7.30 p.m. and therefore, his allegation that accused must have been on duty during normal [*531] hours on 12.1.1972 must he viewed in the light of the above and in particular the inability of the witness to follow the doings of the accused after the start of the performance. The cinema attendance on the night of the 12th was very low and it consisted of eight patrons.

Supt. Demetriou and P.S. Prastitis as well as S/lnsp. Sofroniou denied prompting the accused in any way to sign the confession in question and further denied that they dictated to him in any way that part of the contents of exhibit 20 which amounts to a confession. Accused owned as correct the first part of his statement wherein he alleges inter alia, that he first came to know of the commission of the offence from what he heard in the village. In his statement from the dock he informed us that he learned of the commission of the offence for the first time through the newspapers. We find as a fact that there was no prompting whatever on the part of the police in obtaining this statement and further find that that part of the statement which amounts to a confession was not dictated to the accused by the Police. We reject the allegation of the accused to the contrary.

Is there anything outside this statement to show that allegations made therein are true? Accused gives in this statement an accurate description of the area surrounding the Signals Platoon and the scene at the rear of the premises is accurately described. It is correct that there is a wire fence, as accused maintains in his statement, on that side of the yard of the Signals Platoon wherefrom [*532] accused says that they gained entrance into the yard of the premises. It is correct that there is a rear door opening into the yard of the premises through which one might enter the premises. A significant allegation made in the statement is that Paniccos Zaccheos, ex accused 1, was on duty in the telephone room. At the outset of this judgment, we made reference to the fact that Paniccos Zaccheou was due to be on guard duty at the telephone room of the premises and in fact we know from P.W.7 that at 7.45 p.m. he was on duty at his guard post. There is every indication that Paniccos Zaccheou was in the-premises up until 9.30 p.m. when he asked to be -substituted in the circumstances already described. This is a significant admission on the part of the accused which goes a long way towards establishing the truthfulness of the contents of the statement. Thereafter the accused gives what we, may describe as an accurate description of the arms store. It is a fact that many of the arms stored therein were packed in cases, whereas some bigger weapons were in a standing position. It is the allegation of the accused that he had never entered the Signals Platoon and he had no knowledge of its interior. Yet we must observe that whatever description the accused gives of the interior of the building, tallies with the actual description of the premises and more than that, the description of the surrounding area and in particular the approach of the building from the side of the bookshop of Petsas is also accurate. It is implicit from the statement of the accused to the police that a big quantity of arms and [*533] ammunition had been stolen from the stores, which we also know to be correct from the evidence of P.W.5.

Accused 5 was arrested on the evening of the 25.1.1972, and shortly afterwards he was questioned at Tricomo Police Station by P.S. Rotsakis to whom he made a statement denying any participation in the commission of the offence (exhibit 7). He was removed from Tricomo to Lefkonico Police Station cells and the following morning, after a remand order, to Nicosia Central Prisons. He was not seen by any policeman till the afternoon of the 27.1.1972 when he was conveyed by the Police to Ay. Dhometios Police Station where he was seen by Insp. Maoris P.W. 11, in the presence of two other police officers, not identified by the accused, but who were, according to the prosecution evidence, S/lnsp. Papageorghiou and P.S. Hadjiloizou.

According to Insp. Maoris, the accused soon after being acquainted with the identity of this witness and being told of the fact that he would be questioned in respect of the Tricomo Arms case and cautioned, he made the following oral statement to the Police, which in the course of a side trial was ruled to have been made voluntarily and in circumstances that rendered it admissible. The statement was:-

"Έτο εππέσαμε σε λάθος λόγω

του πατριωτισμού μας. Εν τζιαί έξερα ότι εκάμναμεν κακόν με τούτην την δουλειάν

που εκάμαμεν, τζιαί να σου πω ούλλην την αλήθκειαν."

The accused admitted in chief that he made the above statement on being told by Insp. Maoris that he would [*534] be questioned in relation to the Tricomo arms case, but maintained that this statement made to the police was false and that it had been prompted by promises and further denied that the statement was made with reference to the Tricomo arms case. In cross-examination he contradicted this part of his evidence agreeing that he was at the time referring to the Tricomo arms case. Questioned in cross-examination to account for the discrepancy and in particular what he said in chief that the statement was referring to something else, he gave what we may describe to be an inimitable story, that he thought that the statement was made in relation to a hunt he made of 'djikles' on the night of the 12 .1 .1972. It is hard to reconcile reference to patriotism and an act of gaming, unless one accepts what the accused maintained on oath that he does not know the meaning of the word 'patriotis’. In fact the accused went so far as to suggest that he formed the impression at Ay. Dhometios Police Station that he was interrogated in relation to the hunting of ’djikles’.

From Ay. Dhometios Police Station, accused 5 was conveyed to Athalassa Police Headquarters where he was taken before Supt. Fanis Demetriou. It is the evidence of Supt. Demetriou and Insp. Maoris that on being cautioned again, the accused made the statement, exhibit 8, wherein he gives a detailed account of his participation in the commission of the offence. Accused maintained that he made this statement on being told by the Police that others, and in particular accused had made a statement to the police incriminating him and that if he himself made a statement to the police, [*535] he would not go to prison. Thereafter accused admits that he made the statement, exhibit 8, basing it mostly on what Supt. Demetriou had read over to him from a statement purporting to come from accused 4. Accused made the startling suggestion that he did not appreciate that he was being implicated by the statement he made to the Police, exhibit 8, and maintained that he cared not whether he implicated others. He admitted in cross-examination that at the side trial he put forward that the statement, exhibit 8, was the result of his imagination which later on, in cross-examination in the course of the main trial, he retracted as incorrect. He further retracted in accordance with his evidence in the course of the cross-examination, what he had earlier said at the side trial that he realised for the first time that he would be brought before the Court when the present trial began. He maintained that allegations made in his statement were untrue.

Accused 5 called four witnesses, mostly to support his contention that allegations made in his statement are untrue. Before examining the evidence of these witnesses, we consider it pertinent to make brief reference to the contents of exhibit 8. He introduces his statement in a way that tends to show that his statement was a continuation of what he had already said earlier to Insp. Maoris, repeating: -

"Όπως σου είπα και

προηγουμένως, εκατάλαβα ότι εππέσαμε σε λάθος λόγω του πατριωτισμού μας και δεν

ήξερα ότι έκαμνεν κακόν τούτη η δουλειά που εκάμαμεν και γι’ αυτό θα σου πω

όλην την αλήθεια". [*536]

Thereafter, he gives an account of the circumstances under which he was approached by fellow villagers of his and invited to join a secret organisation. Then he goes on to give an account of his movements on the 12.1.1972, how he went to the house of a certain Kamilos and thereafter he gives detailed account of the circumstances under which the offence was committed. He goes on to say that on the 16.1.1972 he took part in the removal of the stolen arms and ammunition from the house of ex-accused 3.

Ex-accused 3 testified before the Court and maintained that no arms had ever been stored in his house. If fact he testified that on the afternoon of the 16.1.1972 at 5.00 p.m. he left Tricomo for his village Spathariko where he remained till late in the evening. His sister was also called as a witness and she testified on oath that her brother had arrived at the village at 5.00-5.30 p.m. She was cross-examined on a statement she made to the police soon after the commission of the offence and at a time when, as she admitted, facts were fresh in her mind, where she gave a different story regarding the hour at which her brother arrived at the village on the night of the 16.1.1972. In her statement she puts the time at 7.00 p.m.

D.W.2, a friend and relation in law of the accused, testified that on the night of the 12.1.1972 he was in company with accused 5, they went to the cinema and after the cinema performance, they went out in the night hunt of ’djikles’. He testified that he had a detailed recollection of the [*537] events of the evening of the 12.1.1972 and his account supports the allegations of the accused made in his statement, exhibit 7. D.W.2 was unable, however, to give an account of his movements of any other evening in the month of January, 1972 and contended that he had a specific recollection of the 12th because of the discussion he had with accused 5 as to whether the following Sunday they would attend a football match or go to a rally of ESEA. He was first informed that he might be required to testify as a witness two days before the date on which he gave evidence. It is rather strange for a witness to remember, months afterwards, with such certainty that a particular conversation he held with a friend was held on a particular date. A witness may well remember that some days before the rally of ESEA, he was debating with a friend whether they would attend or not the rally but it is rather strange that one should remember with exactitude the date on which the conversation was exchanged, particularly when he has no recollection of his movements on days preceding the 12th and following the 12th.

D.W.3 is the person who, in accordance with the allegations made by the accused in his statement, exhibit 8, approached the accused and invited him to join groups of a secret organisation. He had himself been arrested in connection with this case, but later he was released. He denied being a member of any such organisation, and he denied that he met accused 5 at the house of Kamilos on the night of the 12th as alleged in the statement of the accused. He further denied being in any way involved in the commission of this [*538] offence. He said in cross-examination that he had no recollection of his movements on the night of the 11th or 13th January, 1972, nor for that matter, of his movements on the night of the 12.1.1972, except that he was certain that he paid no visit at the house of Kamilos as alleged in the statement of the accused. He testified that on the night of the 12.1.1972 he met neither accused 4 nor accused 5.

We have already indicated that accused 5 gave at some stage of the proceedings two conflicting versions as to how he came to describe the events of the night of the 12th. The version that he finally adopted is that the details he gives of the commission of the offence were reproduced from the statement of accused 4, which was read over to him once and lasted 15 minutes before he started making his own statement. In fact learned counsel for the accused invited us for the purposes of this allegation of the accused, to compare the two statements and draw inferences from the fact. We have already indicated in the ruling given at the conclusion of the case for the prosecution that the statement of one accused, unless adopted on oath, is no evidence against any co-accused. We have, for this very limited purpose, and in order to examine as thoroughly as possible this allegation of the accused, compared the two statements and we have this to observe: There is considerable similarity between the two statements, but there are allegations in the statement of accused 5 which do not appear in the statement of accused 4. For example, accused 5 maintains that before they proceeded to the building, they received [*539] a signal by means of a light. He describes some of the weapons that were in the armoury as being Vickers, a description nowhere appearing in the statement of accused 4. There is evidence that in point of fact Vickers arms were stored in the armoury of the National Guard. Moreover, he describes the type of some of the stolen weapons which description again does not appear in the statement of accused 4, and which description tallies with the evidence before us regarding the type of arms stolen. It is a fact that there is considerable similarity between the two statements and in particular the circumstances under which the Signals Platoon premises were approached, the manner in which they gained entrance into the premises and the mode in which the operation was conducted. It would, however, be hard for anyone who had no personal experience of the facts, to gain such deep grasp of what had been read over to him once, and proceed to describe it on his own, adding details for which there is outside evidence to support that they are true, for instance the presence of the Vickers arms and the description of the stolen weapons. Accused

5 maintained that he had never visited the Signals Platoon. We reject the allegation of the accused that the statement of accused 8 had been read over to him and we find as a fact that exhibit 8 was voluntarily made subsequent to an earlier intimation by the accused to Insp. Maoris that he wanted to make a clean breast of it feeling that he had acted under misguided patriotism. The accused alleged on oath that he had never visited the Signals Platoon, whereas his description of the premises and the armoury is accurate and correct. Moreover his description [*540] of the approach to the rear side of the premises is also correct. He places Zaccheos in the telephone room, an allegation which so far as it may he checked appears to be true. His description of the stolen arms is also true. Accused further maintained that he never visited the house of ex-accused 3 but knew a fact that was common knowledge in the village, that there had been an EOKA hide-out in his house. If this is the case, it would he strange how accused could describe with such accuracy the hide-out and the fact that this hide-out is situate inside a small room (’spitoudi’) which is adjacent to the house of Zaccheos, allegations which on the evidence before us are true.

We have carefully examined the evidence before us. We disbelieve the witnesses of accused 5, to wit D.Ws. 1, 2, 3 and 4 and we reject their evidence. Further we disbelieve accused 5.

We make the following findings:-

(a) On the 25.1.1972 accused 4, in the course of being interrogated in respect of the Tricomo arms case, he made, in the circumstances already described, the statement exhibit, which, after scrutiny of all the circumstances under which it was made, in the light of what is said hereinabove in this judgment, we find that the contents of that part of the statement which amounts to a confession, is true and we find accordingly.

(b) On the 27.1.1972 accused 5 volunteered at Ay. Dhometios Police Station to make a statement to Insp. Macris, [*541] feeling that he had been the victim of misguided patriotism. This statement was made in the circumstances described by Insp. Maoris. Thereafter accused 5 made a full statement to Supt. Demetriou and Insp. Maoris, in circumstances described by both these police officers, wherein he gives a detailed account of his participation in the commission of the offence. Having carefully considered the contents of this statement, in the light of what appears hereinabove, we find that the contents of this statement is true.

It is evident from the contents of the statement of each accused that they acted in concert with others for the perpetration of an unlawful act, i.e. to break and enter into the arms store of the Signals Platoon at Tricomo and steal therefrom arms and ammunition. We find, therefore, that there was a conspiracy to commit the substantive offence which conspiracy was executed in the manner already described.

In conclusion we find that the prosecution proved its case beyond any reasonable doubt against both accused on both counts. Accused 4 and 5 are, therefore, found guilty as charged.

Accused 4 and 5 found guilty as charged.