Supreme Court allows appeal against disturbance conviction due to failure to prove noise occurred in a public place.

[*1063] 1966 October 13

(JOSEPHIDES, STAVRINIDES, JJ.,HJIANASTASSIOU, AG.J. ) APPELLATE JURISDICTION

Modestos Savvas Pitsilios,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 2832).

Criminal Law - Appeal against conviction of disturbance, contrary to section 93 of the Criminal Code, Cap.154 - Ingredients of offence - Failure of prosecution at trial to prove the ingredients of the offence - Place accused found at the material time not a public place within the meaning of section 4 of the Code (supra) - "Reasonable cause" within section 95 (supra).

Constitutional Law - Cyprus Constitution - Fundamental rights and liberties of the citizen - Guaranteed by the Constitution - Article 11.3 and

11.4 of the Constitution and section 9(3) of the Criminal Procedure Law, Cap.155.

Human Rights - Fundamental rights and liberties of citizen guaranteed by the Cyprus Constitution - See under "Constitutional Law" above.

Observations by the Supreme Court on the duty of the Courts to see that a true balance is kept between personal freedom on the one hand and social security on the other. Social security requires that the police should have power to make a lawful arrest, but individual freedom requires that a man should have power to resist an unlawful arrest.

Appellant in person.

A. Frangos, Counsel of the Republic, for Respondent.

JUDGMENT

The Jud.gment of the Court was delivered by:-

JOSEPHIDES, J.: The appellant, who was convicted of disturbance, contrary to the provisions of section 95 of the Criminal Code, and sentenced to pay a fine of £8, now appeals against his conviction.[*1064]

The particulars of offence given in the charge were as follows:-

"The accused on the 5th day of February, 1966, at Nicosia, in the District of Nicosia, in a public place, to wit in a parking place by the Pancyprian Academy of Girls, did create a noise without reasonable cause, in a manner likely to cause a breach of the peace".

The ingredients which had to be proved by the prosecution in this case were: (a) a noise, (b) in a public place, (c) without reasonable cause, and (d) in a manner likely to cause a breach of the peace.

Unfortunately, the appellant was not legally represented either in the Court below or before us and we did not have the benefit of legal argument on his behalf. In the notice of appeal he put forward several grounds which may be summarised under three heads:

(1) failure of the trial Court to adjourn the case as some of the witnesses did not attend Court;

(2) irregularities by the police from the day of the offence until the day of trial, and

(3) errors and omissions in the notes of evidence kept by the trial Judge.

However, after hearing him address us in person, we allowed him to add a new ground to the effect that the prosecution had failed to prove the ingredients of the offence and particularly that the alleged "noise" had not been created by the appellant in a "public place".

The expression "public place" is defined in section 4 of the Criminal Code as including "any public way and [*1065] building, place or convenience to which ... the public are entitled or permitted to have access either without any condition or upon condition of making any payment..."

The only evidence against the appellantoon this point was that of two policemen. P.C.103 Michael

A. Tsangaris stated:

"I went up to the accused who was in the parking place for cars of the Land Registry and the District Office, just outside the yard of the Pancyprian Academy for Girls. The school-yard is separated from the parking place by wire. The accused was selling cakes, known as 'bombes', to the girl-students of the Academy".

P.C.2829 Christakis Constantinides stated:

"Upon information, in company with P.C.103, I visited the Pancyprian Academy for Girls. There, near the wire fencing of the yard, the accused had his motor-cycle and he was there".

The Judgment of the learned Judge, which was a short one, was as follows:

"From the evidence before the Court it is evident that the offence of which accused is charged has been proved, I believe the prosecution witnesses who stated they went to the locus and accused for no reason started shouting etc. in a public place, I discard the evidence of accused and do not believe his version; his witnesses were no help at all, Kassianides was present only for a short time when accused left for the police station. Therefore I find accused guilty as charged".

It will be observed that the learned trial Judge found as a fact that "accused for no reason started shouting etc. in a public place".

In the course of the argument Mr. Frangos, Counsel for the respondent, very fairly, we think, conceded that there [*1066] was no definite direct evidence that the incident took place in a public place within the meaning of the law. But, he added, the trial Judge may have inferred this from other evidence.

With great respect to the learned Judge, we do not think that there was anything in the evidence to show that the parking place in which the accused was found at the time was a "public place" within the meaning of section 4 of the Criminal Code, and not appprivate parking place. For this reason the accused would be entitled to be acquitted.

It would also appear that, even on the police version of the facts, the appellant may have had "reasonable cause" for creating a noise. The police stated that they asked him to "leave the place" where he was lawfully practising his trade as a hawker of cakes, and the only reason given to him was that "his presence was undesirable", and that he caused "annoyance" (see evidence of P.C.103 Tsangaris, at page 2C and 3B of the record). The appellant was not charged with any offence, he was not told why his presence was undesirable, nor why, how and to whom he caused annoyance; nor was he told that he was doing anything contrary to any law.

He very naturally started protesting, shouting and weeping. According to the evidence of P.C.2829 Constantinides, the accused said "why does the Government persecute me wherever I go? What have I done to the Police and you are after me wherever I go? I told him", P.C. Constantinides stated "to stop shouting about the Government and the Police because if he continued to shout we would take him to the Police Station". (See page 3E of the record). Under these [*1067] circumstances could it be reasonably said that the appellant created a noise without reasonable cause? We think not.

Normally this should conclude the appeal, but as the facts at this case would appear to touch upon one of the fundamental rights and liberties of the citizen guaranteed by the Constitution, namely, the right to liberty and security of person (Article 11), we feel that we ought to put the facts on record to enable the appropriate authority to look into the matter as we are of the view that further investigation in necessary.

The incident for which the appellant was accused before the Court took place on the 5th February, 1966, but although he was taken to the Police Station immediately by the two policemen no written statement was taken from him, nor was he charged with any offence, in fact he was not formally charged until, some 40 days later, that is, on the 16th March, 1966, which was about a month after he had made a written complaint to the Commissioner of Police against the two policemen for breaking his glass-case in which he was carrying cakes on that day. The charge was eventually filed in Court on the 28th April, 1966, that is, two months and 23 days after the alleged offence. It was the version of the appellant, who is a licensed hawker of cakes, that this was a made up case against him and that he was charged by the police some 40 days after the alleged offence, long after he had complained to the police authorities that the two policemen had broken his glass-case, and that this was done in order to cover up their wrongful action. We quote in an appendix at the end of this judgment* the material part of the evidence (examination-in-chief) of the two policemen and that of the appellant.[*1068]

Considering that when the appellant was taken to the Police Station on the day of the incident no statement was taken from him and that he was not formally charged -until after the lapse of 40 days and long after he had made a complaint against the policemen, even on the police version of the facts, a number of questions seem to need investigation. Inter alia, the following matters would have to be looked into: (a) Did the policemen have lawful authority to ask the appellant to leave the place, where he was carrying on his lawful trade, for the reason given by them? (b) If the policemen were purporting to arrest the appellant, they do not appear to have informed him of the reasons for his arrest in compliance with the provisions of Article 11.4 of the Constitution and section 9(3) of the Criminal Procedure Law, Cap.155; and

(c) on what lawful authority did the policemen purport to arrest the appellant without a warrant (Article 11.3 of the Constitution).

It should not be supposed that, in raising these matters, we have any desire to encourage citizens to resist lawful authority. It is the duty of the Courts, however, to see that a true balance is kept between personal freedom on the one hand and social security on the other. Social security requires that the police should have power to make a lawful arrest, but individual freedom requires that a man should have power to resist an unlawful arrest. If the police should overstep the mark and arrest a man when they have no lawful authority to do so, he is entitled to resist the unlawful arrest.

In the result the appeal is allowed and the conviction and sentence quashed. The sum of £8 fine, paid by the appellant, to be refunded to him.

Appeal allowed.

Conviction and sentence quashed.

Fine paid by appellant to be refunded.

* Vide -post, at p.1069 et seq.