Court rejects insanity defense where accused knew act was wrong despite paranoid ideas.

[*391] 1977 February. 14.

(STYLIANIDES,P.D.C.,KOURRIS,S D. J. NIKITAS,D.J.)

IN THE ASSIZE COURT OP NICOSIA

Republic,

v.

Andreas Christodoulou, alias Kamilaris,

Accused.

(Criminal Case No. 7576/73)·

Criminal Law - Defences - Insanity - Burden of proof - Standard of proof - Homicide by shooting - Accused labouring under paranoid ideas and hallucinations - Capable of understanding that at the time of the offence he fired the shot at the victim - And knew that this action was wrong - Defence of insanity not established.

Criminal Law - Homicide - Section 205(1) and (3) of the Criminal Code, Cap. 154 (as amended by Law 3 of 1962) - Ingredients of the crime of homicide.

A. Angel ides with G1. HjiPetrou5 for the Republic.

L. Clerides5 for the Accused.

JUDGMENT

The judgment of the Court was delivered by:- STYLIANIDES, P.D.C, : The accused is charged [*392] with the offence of homicide, contrary to section 205(l) and (3) of the Criminal Code, Cap. 154, as amended by Law 3 of 1962.

The particulars of the offence, as set out in the information, are that the accused on the. 14th of April, 1973, at Astromeritis in the District of Nicosia, by an unlawful act caused the death of Charilaos Solomou Ttomas of Astromeritis.

The substance of the crime lies in the fact that the death of the victim was caused by the unlawful act of the offender.

In Fostieri v. The Republic (1969) 2 C.L.R. 105, at p. 112 it was said by the then President of the Supreme Court;-

"So long as it is established to the satisfaction of the Court that the offender intended the unlawful act which eventually resulted in the death of the victim within the period prescribed, by Law, it is not necessary for the prosecution to prove that the offender intended the death of the victim".

In Cyril David Church, 19 Cr. App. R. at p. 213 it is reported:-

"The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to at least the risk of someharm resulting therefrom albeit not serious". [*393]

And further down -

"Whenever any unlawful act is committed in relation to a human, being, resulting in death, a verdict of manslaughter would not inexorably follow. Sven in relation to manslaughter, a degree of mens rea has become recognized essential·'”.

The burden of proof of all the ingredients of the offence lies, under our Law, entirely on the prosecution. The prosecution must bring home to the accused beyond reasonable doubt the offence charged.

On 14.4.73 round about noon the accused

went to the coffee-shop of his co-villager Costas Mikrommatis, P.W.14, and bought cigarettes. There he met Charilaos Solomou Ttomas, the victim, who asked the accused to remove the old body of a car which was lying in an open space, presumably

placed there by the accused. The accused agreed to remove it and left. P.W.2 Kyriakoullis Solomou and P.W.14 testified that it was an ordinary conversation.

Two hours later the victim and a number of other persons were sitting on the southern verandah of the same coffee-shop which is shown on the plans, Exhibits

1 and 2, prepared and produced by police Topographer, P.W. 1, Stavros Kaffas.

The accused at that time was seen by P.W.2, P.W.4 and P.W.5, coming from the direction of his house towards the coffee-shop carrying a. sporting gun and wearing a cartridge belt. [*394]

P.W.2, on seeing the accused, uttered the words "eton tzinon pou tin Dromolaxia pou erkete". In front of the coffee-shop, there was a

stationary bus. When the accused passed that bus and reached point 4, on the plan Exh.1, which is 10'6" from point 2

where the victim was sitting, the accused stopped. The events that followed were described by P.W.2, P.W.4, P.W.5 and P.W. 6.

The victim was sitting at point 2, the narrow end of the verandah near the wall. Prosecution witnesses 2, 4 and 5 were at points 1 , 3 and 5, close to the victim, but on the other side of the verandah.

P.W.2 stated that the victim said to the accused "en mera tou kyniyiou simera?" The accused retorted "yiati fonazis mesa stous kafenedes?" He raised the gun up to his waist and fired at the victim. The victim was bleeding. The accused left in the direction of the communal telephone, marked "T" on the plan, Exh. 1.

P.W.4 Aristodemos Mikrommatis, testified that when the accused reached point 4, he raised his gun up to his waist and fired at the victim; the victim was injured on the head and was bleeding. When the accused was raising the gun, he uttered something which was not made out by the witness. Then the accused left in the direction of the public telephone, which is marked "T" on the plan, Exh. 1.

P.W.5 Vassilis Costa Mikrommatis stated than when the accused came round the stationary car to point 4, he said, addressing the victim, "yiati efonazes to proi" and [*395] fired at the victim. He noticed the head of the victim bleeding. The accused turned, proceeded two or three meters, he loaded his gun and proceeded in the direction of the public telephone. On his way he dropped the expended cartridge, at point 7.

P.W. 6 Solon Constantinou, is the village barber. His shop is opposite the coffee-shop. On hearing the shot he went out of his shop and saw the accused going away from the scene in a normal pace.

On the wall just behind the spot where the victim was sitting at a height of 4' 4" from the floor a hole, probably caused by a shot, was noticed by P.W. 1, the Police Topographer and eye-witness Mikrommatis, P.W.5. At point 7, an empty cartridge was found by Police Inspector Demetriou P.W. 16.

The accused in his voluntary statement taken by P.W.16 on the Same night alleged that the shot was accidental.

In the course of his address and at the invitation of the Court learned counsel for the defence commented on the probability of the accused’s gun going off accidentally. The defence of accident was not really raised in the cross-examination of the prosecution witnesses nor was it stressed before us. Nevertheless, we think it right to advert to this aspect of the case, in view of the allegation of the accused in his statement to the Police, Exh. 4. [*396]

The eye-witnesses, viz. P.W.2. 4 and 5, stated that the accused spoke to the victim "before/ the firing of the gun. That brief conversation between the victim and the accused was recited earlier. Then, according to these eye-witnesses, the accused raised the sporting gun up to his waist and shot the victim Charilaos Solomou Ttomas who was sitting separately from the others at point 2 on the verandah. The distance from point 4, where the accused was standing up to point 2, where the victim was sitting is only 10' 6". The hole on the wall at point 6, is indicative of the direction to which the accused fired.

The version of the accidental shot is not reconciled with the áccused's admission that he pulled the trigger of his gun.

The evidence of the prosecution witnesses stands unchallenged and it is accepted by the Court. We rule out accident and we accept that the accused raised his gun and shot at the victim.

The accused from the scene of the accident went to the house of his father. The latter took from the accused the gun, the cartridges and the belt which he delivered on the same day to Ag. Sgt. Gregoriou (P.W.12). 4 cartridges were found in the pocket of the accused by P.W.10, the Police officer who arrested him.

The gun, the cartridges and the expended cartridge found at the scene were handed to P.W.3, a ballistics expert of the Police. The gun is a sporting gun owned and registered [*397] in the name of the accused by virtue of certificate of registration, Exh. 3. According to this witness, it was used after its last cleaning Both the gun and the cartrides were in good and usable condition. With regard to the expended cartridge, found at point 7, as there were no sufficient characteristics, the expert was unable to say that it was discharged from the gun of the accused. The gun and the cartridges were kept at the Morphou Divisional Police but as Morphou is occupied by the Turkish invading forces they were not procuded before us.

The victim was conveyed from the scene to the Nicosia General Hospital where he was examined by doctor Spanos who found an open wound on the right temporoparietal region of the head (krotaphovregmatikis choras). A part of the skin 5x5 oms was missing and fragments of the bone and brain substance were coming out of the wound. The victim despite two operations by the witness, met his death on the 3rd May, 1973, as the result of these injuries. Doctor Kyamides, who performed on the same day a post mortem examination, after the corpse was duly identified to him, stated that the cause of death was the destruction of the brain of the right lobe, due to injury caused by a shot-gun.

We accept the evidence of the prosecution which is uncontradicted and in short we find that Charilaos Solomou Ttomas was shot dead by the accused in the circumstances described by P.W.2, 4 and 5. He was injured and died as a result of the injuries received from the shot. [*398]

The defence of insanity was raised.

The relevant statutory provision is section 12 of the Criminal Code, which reads:-

"12. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission.”

“But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon mind one or other of the effects above-mentioned in reference to that act or omission".

Having regard to the wording of this section, and the answer of the Judges to question 3 in the MacNaughton Case, we are of the view that this section introduced in essence in a codified form what in England is known as the MacNaughton Rules.

Every person is deemed sane until the contrary is proved. The burden of proof lies on the accused but the onus of proof is less than that required at the hands of the prosecution in proving the

case beyond reasonable doubt; it may be discharged by evidence satisfying the Court of the probability of that which

the accused is called upon to establish. It is the same burden that rests upon a plaintiff [*399] or defendant in civil proceedings which was expressed as follows:-

"The preponderance of probability may constitute sufficient ground of a verdict". (Howard Bateman Carr v. Briant,29 Cr. App. R.

76 at p. 87).

In considering whether a person is to be excused from the consequence of a crime on the ground of insanity, the question is not merely whether he was suffering from a defect of reason due to disease of the mind but whether the defect was such as to render him not responsible for his action. The true test is responsibility and not merely insanity (Rivett Case 34 Cr. App. R. 87).

For the defence of insanity to succeed it has to be proved that the accused was not capable of understanding "what he was doing" which means that he was incapable of understanding the physical character of his act. Georges Codere ,12 Cr. App. R. 21 at p. 27). If the accused was capable of understanding the physical character of his act again he is absolved from criminal responsibility if he was not capable of knowing that he ought not to do the act. The words "ought not to do the act" occurring in section 12 of our Criminal Code mean that he did not know that what he was doing was wrong. Wrong, however, means legally wrong, contrary to Law and not merely morally wrong. (windle case,36 Cr. App, R. 85 at p. 89).

With these principles in mind we proceed to examine the evidence before us. Such evidence consists of the acts [*400] and demeanour of the accused previously to, contemporaneously with and after the event and the medical evidence.

The evidence of doctor Malekkides is based on information and his examination of the accused from l6.4.73 onwards.

The accused was confined at the Mental Hospital of Athalassa from 24.6.69 to 6.7.69. On 2.7.69 he was adjudicated a mental patient by the District Court or Nicosia. On 6.7.69 he was discharged on parole. He was a person susceptible to derision; P.W. 10 P.S. Kaloyirou, who served at Astromeritis for some time, stated that the accused was known as the fool of the village. The accused some months before the event, entertained grandiose ideas.

From the testimony of the accused’s father, the contents of Exh. 4, (voluntary statement of accused to the Police) and the interviews with doctor Malekkides, we are satisfied that due to a disease of the mind, the accused had paranoid ideas and hallucinations that all his covillagers were making a fool of him, they were insulting him and his wife and wanted to harm him.

Doctor Malekkides, stated that the accused besides suffering from schizophrenia was of low intellect, his I.Q. being 78 and his judgment was diminished.

When the accused went from the scene of the crime to his father’s house, he gave the following account of the happenings, according to the evidence of the father. He went to the coffee-shop to purchase cigarettes; the victim complained [*401] to him that he did not remove the body of a car, the accused replied that he had sold it ten years ago and added "afisme". Then the victim uttered the words "an den tin sikosis re kerata tha se pexo; gamo ton shisto tis kyrias sou”. Later on whilst he was going for hunting he heard whistlings and someone saying "pou pais re

pelle, ise ekinos pou tin Dromolaxia?" Then he heard the deceased saying "pou pais re skyllopelle; en ora tou kyniyiou? Thereupon the

accused rushed towards the victim and said "Yiati me vrizis; ehoume proigournena?" He made a more of his arm and a shot was heard.

The accused was complaining to his father that the villagers were insulting him and his wife. He was weeping when relating all these and he was exclaiming the words "ta pethkia, ta pethkia mou ti ekama".

In his voluntary statement, Exh. 4, taken on the same night he said that the victim at the first incident insulted his wife with the words "gamo tin kyrian sou". He further stated that he took his gun which he loaded and also a cartridge belt with 28 cartridges, in order to go hunting. On reaching the coffee-shop about 25 co-villagers who were there, started whistling at him. The victim told him "yia ekinin tin kashia an den uin fiyis tha spaso ta pothkia sou". To this, the accused replied "en tzie ehomen proigoumena, en na frontiso". He turned to go away, but whilst he was holding the gun with his right hand "eyirise to oplo athela mou kata pano tou, epiese tin skandali ke epexe mia shipethkia alla en ixero an ton epetiha". He proceeded to [*402] the kebab stall (point 9 on the plan, in the yard of the coffee-shop), he removed the expended cartridge, but he left the other, the live one in, as his co-villagers "eyirefkan na tou epitethoun". He went to his father’s house to whom he said that his co-villagers "ekoroidepsan ton, estamatise na yirepsi ton logo ke kata lathos san ekouventiazamen epexa ton Ttoma" and he concluded "toutin tin doulian ekama tin dioti me esyhisan i choriani mou san ekouventiazamen, en athela pou epexa ton Ttoma san ekouventiazamen, eyio esyntromahtika ke efovithika pou eyirepsan i choriani mou na mou epitethoun".

The accused repented the same paranoid ideas and hallucinations when interviewed by doctor Malekkides on 16, 18, 25 April, 1973. He was found by the doctor to be sentimentally subacute, indifferent with some anxiety and he was slightly confused. His condition later deteriorated.

It is true that no motive was proved beyond the hallucinations and paranoid ideas the accused was entertaining. He committed the act openly and in broad daylight in the presence of many persons. He left the scene and proceeded at a normal pace. In the evening on the day of the offence he was still confused and did not read his voluntary statement when asked by P.W.16.

Defence counsel argued that the accused after the shooting appeared to be unconcerned. Though he left the scene in a normal pace it appears that he was not so unconcerned, as submitted by his counsel, because at the house of his father he expressed concern about his children. This [*403] concern is to our mind the result of the understanding of the consequences of his act and the repercussions on his family.

On the totality of the evidence before us we have come to the conclusion that the accused at the time of . the commission of the offence was afflicted by disease of the mind. He was, however, capable of understanding the physical nature of his act, the shooting and further that he knew that the commission of that act carried sanctions and therefore it was an act which he ought not to have done. This view of ours is fortified by the direct reply of doctor Malekkides who stated that the accused had partial knowledge of the act he was doing and he knew that such act involved sanctions though he was a person of diminished responsibility and was labouring under imaginary provocation which was the result of his mental condition.

As we are satisfied that the accused at the time of the shooting was labouring under paranoid ideas and hallucinations he should be judged on the assumption that such paranoid ideas and hallucinations were real facts. The paranoid ideas and hallucinations revealed by the evidence as we accepted it do not exhonerate the accused from criminal responsibility. We do not accept that at the time of shooting he had the paranoid idea of people attacking him as set out in his answer to the formal charge, Exh. 5, made on 5.5.73, when his condition according to the doctor "deteriorated".

There is no doubt in our mind that

the accused though a person suffering of mental disease as aforestated [*404] was capable of understanding, that at the time of the

offence he fired the shot at the victim. And further that he knew that this action was wrong.

Taking into account all the evidence on the reasonable balance of probabilities the defence of insanity was not established.

As we are satisfied that all elements constituting the offence had been proved by the prosecution beyond reasonable doubt, we find the accused guilty as charged.

Accused guilty as charged.