Criminal Court dismisses receiving charge but convicts defendant of stealing stolen icon.

[*352] 1974

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b) All present at the time of committing an offence are principals, though one only acts, if they are confederates and engaged in a common design of which the offence is part. - See note(s) in Halsbury's Laws of England, 3rd ed. Vol. 10 page 296.

c) A person who has a common criminal purpose with the principal in the first degree is a principal in the second degree, if he is either actually present at the scene of the crime... See note (p) at p.

298 in Halsbury's Laws of England 3rd ed. Vol. 10.

d) A person may be liable for aiding and abetting if he remains inactive when he is under a duty to take active steps, and such inactivity aids or facilitates the commission of the offence by the principal offender - (Rubie v. Faulkner (1940) 1 All E. R. 285).

e) A participation, the result of a concerted design to commit a specific offence is sufficient to render the participant a principal in the second degree. (Archbold, Criminal Pleading, Evidence and Practice, 35th ed. page 1589 paragraph 4127).

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Archbold Criminal Pleading Evidence and Practice 35th ed: "...

where one of three persons who had agreed to commit burglary informed the police, and though present at the burglary

was held not liable: R. v, Donnelly, R. & R. 310".

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(Criminal Law - Stealing - Receiving stolen property - Not possible to convict an accused person of both the stealing and the receiving of an article.

Criminal Law - Possession - A person who transports goods is inevitably in possession of them.

JUDGMENT

The accused is charged for stealing and receiving the icon of Saint Panteleimon, valued at £50.-, the property of the Holetria Church Committee.

The facts, alleged by the Prosecution witnesses, 1 are as follows:

On the basis of relevant information and upon instructions, Police Sergeant 729, Andreas Neofytou (P.W.1), then in charge of Kouklia Police Station, accompanied by Police Constable 1497 Ermis Papa Panayiotou, on the 7th of February, 1974, at about 14.00 hours, at the junction of Paphos-Limassol-Kouklia roads, stopped motor car No. FC 506 Volkswagen make, belonging to and driven by the accused towards Limassol. Special police Constable No. 5268 Georghios Aresti, in uniform, was sitting on the front seat of the car, and ex-accused 2, Andreas Loui Renou of Limassol, was sitting on the rear seat. Due to the absence abroad of accused 2, the Prosecution offered no evidence against him and, consequently, this 2nd accused was discharged.

When P.W.1 stopped the car, he informed the persons in it that he intended to carry out a search in connection with a stealing of icons, cautioned them and the accused as well as the passengers said: "All right".

There followed a search in the boot of the vehicle [*361] and underneath a piece of wood there was found covered the icon of Saint Panteleimon, which was seized and was produced to the Court and marked as exhibit 3.

When P.W.1 found the icon, he asked the accused where he had found it, cautioned him and the accused stated: "We found it outside a church at Holetria, and I carry it for safe custody", Thereupon, the P.W.1, having kept the icon as an exhibit, led the accused and the passengers to Paphos Police Headquarters, where he delivered them to the investigator of the case, P.S. 1721 Georghios Georghiades, P.W.2. This P.W.2 asked them how it happened and they all found themselves in the Police Station. The accused, as well as ex-accused Andreas Loui Renou, replied that they had stolen the icon from the church of Saint Panteleimon. Thereupon P.W.2 cautioned the accused who continued saying that they would take the icon to Limassol to sell it. The accused, then, volunteered to give to the witness a statement, which the witness

took down in writing in accordance with the Judges' Rules and which, having been produced, was admitted as evidence and

was marked as exhibit 1 .

It should be noted that no objection was taken for the production and admission as exhibit of the said statement, the full context of which I do not propose to repeat here. However, I consider it expedient to cite its last part: "The purpose for which we took the icon was to take it to Limassol

to sell it to Kontopoullos in order to take money. It is the first time that we do such an act and I ask for pardon,

it was a mistake of mine. Where I mentioned icons, it is one icon because I knew that only one icon was in the [*362] church and the church was remoted and ruined, as Kokos told us Andreas, at the time that he was taking the icon, said that it is a good thing to take the icons from remoted and ruined churches".

The accused having expressed their agreement were on 8.2.74 accompanied by P.W.2 to the church of Saint Panteleimon at Holetria, where, after P.W.2 had cautioned the accused, they pointed out the place wherefrom they had taken the icon, the accused adding, after he was again cautioned by P.W.2: "It is the first time that we do such an act".

The church priest, P.W.3 deposed that the church wherefrom the icon, exhibit 3, had been stolen, is dependent on the synonymous church at Holetria and is within the jurisdiction of the Holetria Church Committee, he being the President. Regarding the estimated value of the icon this witness said that he was not in a position to fix the value of the icon, hut in any case he estimated it to be much higher than at the value of £3 to £4 that was put to him by the defence.

When the accused was called upon to defend himself and was testifying before the Court he adopted on many points the contents of his statement to the Police - exhibit 1 - but he also alleged the following:-

“When I told Andreas Loui Renou not to take the icon, he told me that he would take it to protect it, it’s a good thing. I said what protection would you afford and he replied that he would take it to the Bishopric”.

In cross-examination the accused said that the [*363] reason why he told Andreas Loui Renou not to take the icon was because he verified that the church was not abandoned and ruined as he had been told by Kokos, and that they would sell the icon to Kontopoullos in case they found the church as Kokos - the special constable - had described to them.

When it was put to the accused that if he had not been stopped by the Police and if the icon had not been found, then he would take it and sell it to Kontopoullos, the accused replied that he would not be interested in what Andreas Loui Renou would do.

However, the above allegations of the accused are in full contradiction to the contents of exhibit 1 , which the accused not only accepted and was put in as evidence but he also adopted its truth in his evidence on oath.

Moreover it should be noted that P.Ws.1 and 2 were never cross-examined on their evidence regarding statements made to them by the accused, nor was it put to these witnesses any allegation contrary to or contradicting the contents of the accused's statements.

For the above reasons and having in mind the whole demeanour of the accused when he was giving evidence before the Court I am convinced that the accused lied and I cannot accept his allegations but I drop them as untrue.

Thus, on the basis of the evidence before me it is proved that the accused, in his desire to discover ancient icons which to sell to Kontopoullos in Limassol, on 7.2.74 by means of his car and accompanied by the 2nd accused as well as the ex-special Police Constable Georghios Aresti, [*364 ] did go to the old church of Saint Panteleimon at Holetria wherefrom they took the Saint's icon and were taking it to Limassol in order to sell it to the said Kontopoullos, when, on their way, their vehicle having been searched, the stolen icon had been found in their possession. The accused confesses the stealing of the icon both in his statements to P.Ws.1 and 2 as well as in his statement-exhibit 1 - made to P.W.2.

In addressing the Court the defending counsel submitted that as the accused, both in exhibit 1 as well as in his evidence on oath, stated that the icon was taken by the other accused, his client should be found to be innocent of the charge of stealing because the element of taking as well as that of carrying away is missing.

As I have stated earlier I drop the accused's allegation as untrue. However, even if I had accepted his said allegation it would again not be possible to find that his counsel's submission could stand.

I do not wish to expand on this subject but I simply wish to remind:

a) The provisions of section 20 of the Criminal Code, Cap. 154.

b) All present at the time of committing an offence are principals, though one only acts, if they are confederates and engaged in a common design of which the offence is part - See note (s) in Halsbury's Laws of England, 3rd ed. Vol. 10, page 296. [*365]

c) A person who has a common criminal purpose with the principal in the first degree is a principal in the second degree, if he is either actually present at the scene of the crime... See note (p) at p.

298 in Halsbury's Laws of England, 3rd ed. Vol. 10.

d) A person may be liable for aiding and abetting if he remains inactive when he is under a duty to take active steps, and such inactivity aids or facilitates the commission of the offence by the principal offender - (Rubie v. Faulkner (1940) 1 All E.R. 285.

e) A participation, the result of a concerted design to commit a specific offence is sufficient to render the participant a principal in the second degree (Archbold, Criminal Pleading, Evidence and Practice, 35th ed. page 1589, paragraph 4127.

Another suggestion made by the defending counsel was that in case the Court found that the stealing had been committed not by the accused but by Andreas Loui Renou, then the accused could not be found guilty of the second charge to wit, receiving because the accused had no possession of the stolen icon.

On this subject I consider it sufficient to remind only the case of Panayiotis Charalambous Mixi v. The Republic 1962 C.L.R. p. 111 and the case of Anastasiou .v. The Republic (1973)

12 J. S. C. p. 1732 where President Triantafyllides at p. 1736 said:

"A person who transports goods is inevitably in possession of them". [*366]

Of course, and according to the suggestion of the defending counsel, it is not possible for the Court to find an accused person guilty of both the stealing and the receiving of an article, since the trial takes possession by the act of stealing and not afterwards.

Before concluding this judgment and in reference to the special police constable Georghios Aresti who was not charged because he was the police informer, I consider it expedient to remind paragraph 4122 of page 1587 in Archbold, Criminal Pleading, Evidence and Practice, 35th ed. : "... where one of three persons who had agreed to commit burglary informed the police,and though present at the burglary was held not liable: R.v. Donnelly, R. & R. 310".

As a result of all the above and since it has been established that the stolen icon is of some value not specified, I do not entertain any doubt in finding and in fact I find that the accused is guilty of the charge of stealing and I so declare him but I dismiss the second charge of receiving ).

+ An English translation of this judgment, as prepared by the trial Judge, appears at pp. 360-366 post.