Criminal trespass charge dismissed due to lack of proof regarding property ownership and specific intent to annoy.

[*347] 1982 February 9

(S. NICOLAIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Nicosia Police, v.

Antigoni Papaphilippou,

Accused.

(Case No. 1 6966/81).

Criminal trespass - No proof that complainant owner of the house - And no proof that accused had the specific intent required - Section 280 of the Criminal Code, Cap. 154.

Insp. Michaelides, for the Prosecution.

Ch. Ierides, for the Accused.

JUDGMENT

The following judgment was delivered by:-

S. NICOLAIDES, D.J.: - The accused in the[*348] present case

is charged with the offence of criminal trespass contrary to, s. 280 of the Criminal Code, Cap. 154. The particulars of the

offence state between the 14th day of September 1981, and 16th day of September 1981 at Strovolos in the District of Nicosia having lawfully entered the house in the possession of Keti Tyllirou of Strovolos did unlawfully remain there, with intent to annoy her.

The case of the prosecution rests on the evidence of three witnesses. The fact-s alleged by the prosecution witness are the following:

P.W.1 - Keti Tyllirou is a part owner of a house at Patmou 15, Strovolos; the other part owner is her sister but they have come to an arrangement and she has taken the house at Patmou 15 under her responsibility. She herself now lives at Patmou 17A with her parents, prior to that she was living at Patmou 17. Since September 1978 the accused was brought into the house, at Patmou 17, by the brother of P.W.1 who testified before the court as P.W.3 with whom later the accused became engaged and this was announced in 1980.

The house at Patmou 15 as it transpires from the evidence belonged to the family of P.W.1 and P. W. 3 which during the period between 1978-1979 was occupied by another brother of P.W.1 and his wife and after those by a sister of P.W.1 and her husband who vacated the premise when their house was ready and they moved in.

In 1979 approximately P.W.3 and the accused moved into Patmou 15 and took up possession as they were engaged[*349]to be married and lived there as husband and wife until the end of August 1981 when something happened and P.W.3 left the house at Patmou 15 and went to live with his family at Patmou 17A. While in the house accused was not paying any rent. On 30th August. 1981, as a result of the event which has happened accused did. not stay at the house, Patmou 15, during the night and was sleeping in the house of an aunt’s of hers together with her mother at Strovolos.

On 1st September, 1981, P.W.3 unilaterally published in the newspaper that his engagement to accused was dissolved. On 1.9.81 P.W.2 acting on a complaint made by P.W.1 the previous day, visited the house at Patmou 1 5 where he met the accused arid told her to vacate the house as that was the wish of P. w.1 the owner of the house. Accused replied that she would not leave as she had no place to go and on that date was informed by this witness of the announcement published in the newspaper by P.W.3 regarding the dissolution of their engagement. She was further informed that she had 10 days to vacate the premises as this period was granted by the owner.

On the 12th September 1981, P.W.2 visited again the house, (Patmou 15) to see whether the accused vacated the premises, and the accused was told again that she should leave the house. Even though the witness was not cross-examined on this point still accused who gave evidence on Oath testified that P.W.2 did not visit her on 12.9.81 but on

15.9.81 only when accused was told that the case would he proceeded with. This time, P.W.2 was accompanied by the brother-in-law of[*350]P.W.1 and she refused to open the door hut she stated she was prepared to pass from the police station the following morning. P.W.2 testified that accused went to the police station on 16.9.81 and was formally charged. She then gave a reply to the formal charge (exh.1) before the court, P.W.3 stated that the house (Patmou 15) belongs to his sister P.W.1, and was given to him to live there without paying any rent. She lived there with accused but at the end of August 1981, he left the house and lived at Patmou 17A for a period of about one month and then he moved back into the said house where he resides Until now. During that month accused remain in the house

P.W.1 stated that she was annoyed by the accused and at no time their relations even since 1978 were any good. She stated that accused's aunt was phoning to her and annoying her also implied that accused did the same.

Accused's version is that since August 1978 with the blessing of the mother of P.W.1 & P.W.3 she got engaged to P.W.3. Since September 1978 she lived with P.W.3 and the rest of P.W.3's family at Patmou 17; then moved with P.W.3 at Patmou 15, where she lives up to now with the exemption of about one month when P.W.3 left for reasons she did not really know, she herself, left the house after an incident which happened (alleged assault on her mother by someone in P.W.3's family or relative) and during the night for about 13-15 days slept at an aunt's house together with her mother as she could net. leave her by herself.[*351]

P. W. 2 visited her on the 1st or 2nd September 1981 and told her to leave the house; the next time he visited was after the 13th September 1 981, as she began again to: sleep in the house after that date, and told her that he would. charge her, she replied that she would pass from the station the following morning, which she did, was charged and left. She alleged that she was visiting the house almost every day during the. period between 30.8. 81 and 14.9.81 she met P.W.3 in the house and he has given her money for her expenses as she had none. She remained there to see what has happened and how matters will develop, she had no intention to annoy P.W.1, neither did she annoy her.

Section 280 reads as follows:-

"Any person who enters into or upon property in the possession of another with intent to commit an offence punishable by this Code, or by any Law in force within the Republic, or to intimidate insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence punishable by this Code or by any law. in force within the Republic, is guilty of a misdemeanor and is liable to imprisonment for two years".

In the present case two questions pose for an answer.[*352]

A:Was P.W.1 Keti Tyllirou, in possession of the property?

B:Has the specific intent been proved?

As regard question A above it appears from the evidence adduced that P.W.1 was a part owner of the property but the person in possession for a period of about 1½ years or more was her brother P.W.3 who on 30.8.81 or day or two before left the house for some reason and stayed at the house of Patmou 17A however he never said he abandoned possession neither did he state while giving evidence that he intended to stay away from that house. Therefore, I assume that he left it temporarily, having regard to the evidence of accused that P.W.3 was visiting the house and even gave her money. Therefore, the prosecution failed to prove who was the person in possession of the house with the certainty required in criminal cases. Even though not necessary I would proceed to examine question B.

"Intent" is a necessary ingredient of the offence created by s.280 of Cap. 154 and the prosecution must prove it beyond reasonable doubt. In R. v. Steane (1947) 1 All E.R. p.873, the principles, regarding the onus of proving a particular "intent" are laid down when the intent is a necessary ingredient to the offence.

At p.815 of the above case, Lord Chief Justice Lord had this to say:-

"Now, the first thing which the court would observe is that where the essence of an offence or a necessary constituent of an offence is a[*353] particular intent; that intent must be proved by the Crown just as much as any other fact necessary to constitute the offence".

Continuing at p.816:-

"No doubt, if the prosecution prove an act the natural consequences of which would toe a certain result and no explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, tout if on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the Jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to toe acquitted".

The above approach was followed in a number of cases toy our Supreme Court (see Andreas Georghicu Protopapas v. Police, 1962 C.L.R. p. 27 etc.).

In Petros Stavrinou v, The Republic (1969) 2 C.L.R. p. 97 at p. 105 Mr. Triantafyllides J. , as he then was, said:-

"In other words, that when the presence of intent is an essential ingredient of the offence charged it is not enough to say, in ascertaining whether a particular intent is proved or not, that –this was a reasonable inference to be drawn from the[*354] facts, but one must go further and say that this was the only reasonable inference that could be drawn".

Examining the above question in the light of the evidence before me I do not think accused by remaining in the house this would necessarily be referable to the specific intent to annoy P.W.1, especially when viewed in the light of the explanations given by the accused neither I come to the only conclusion that the intention of the accused was to annoy P.W.1.

In order the offence to be committed it must be proved beyond reasonable doubt that the accused had the specific intent required by the enactment. Actual knowledge by the accused that her act was likely to annoy is not sufficient to sustain a conviction.

Therefore the prosecution failed to prove the charge with the certainty required in criminal cases.

In the result the accused is acquitted and discharged.

Accused acquitted and discharged.