Criminal appeal dismissed; arson conviction upheld as reasonable jury would convict without impugned evidence.

[*725] 1967 June 23

(VASSILIADES, P., TRIANTAFYLLIDES, JOSEPHIDES, JJ.)

APPELLATE JURISDICTION

Nicos Antoni Polycarpou and Another,

Appellants,

v.

The Republic,

Respondent.

(Criminal Appeals 2874-2875)

Criminal Law - Conviction - Appeal against conviction - Attempted arson, contrary to section 320 of the Criminal Code, Cap. 154 - Evidence - Circumstantial Evidence - Admissibility - Grounds of conviction - Conclusions of trial Court properly warranted by evidence before it - Impugned evidence relating to the Identification of Appellant's 1 car - Trial Court would have convicted Appellants even without crediting as reliable such evidence - Therefore, no substantial miscarriage of justice in the sense of the proviso to section 145(1)(b) of the Criminal Procedure Law, Cap.155, has occurred.

Criminal Procedure - Appeal - Unreliable evidence - Substantial miscarriage of justice - The Criminal Procedure Law, Cap. 155, section 145(1) (b) proviso,

Evidence in Criminal Cases - Attempted arson contrary to section 320 of the Criminal Code, Cap. 154 - Circumstantial evidence - Proviso to section 145 (1)(b) of the Criminal Procedure Law, Cap.155.

Criminal Law - Arson - Attempted arson - Criminal Code, Cap.154, sections 319 and 320.

G. Cacoyiannis with Fr. Kolotas, for the Appellants.

L. Loucaides, Counsel of the Republic, for the Respondent.

JUDGMENT

VASSILIADES. P.: The judgment of the Court will be delivered by Mr. Justice Triantafyllides.

TRIANTAFYLLIDES,J. : The two Appellants in these appeals - which have been consolidated - were convicted by the Assize Court of Limassol, in case 7973/66, of the offence of attempting, on the 28th May, 1966, to set fire to furniture stored in a store at 6, Zalongou street, Limassol, contrary to section 320 of the Criminal Code (Cap. 154), and they were sentenced to five years' imprisonment each.

The two Appellants were tried together with three other persons on an information containing originally three counts: one charging all accused with a conspiracy to commit arson of the furniture in the tore in question, another charging them with setting fire to such furniture, and yet another charging them with having in their possession, at the time, explosive substances, namely, a roll of safety fuse.

At the close of the case for the prosecution the three co-accused of the Appellants were not called Upon to make their defence and they were, consequently, discharged. The Appellants were, likewise, discharged on the count relating to the explosive substances, but they were called upon to make their defence on the remaining two counts.

At the end of the proceedings both Appellants were acquitted on the conspiracy and arson counts, but the trial Court directed the addition of new count for attempted arson and convicted them thereon. The Appellants [*727] appeal now against such convictions.

The convictions of the Appellants have been based entirely on circumstantial evidence, there being no eye witnesses' evidence of the complicity of the Appellants.

Such circumstantial evidence has consisted mainly of matters which will be referred to in the immediately ensuing brief account of the salient facts.

On the 28th May, 1966, at about 8.50 p.m., a violent explosion took place in a furniture store situated at 6, Zalongou street, in Limassol. It was followed by an outbreak of fire which raged until about midnight. The store, and almost all the furniture therein, were destroyed.

In the store, and just inside its only door, there was discovered, after the fire had been put out, a converted into a tanker pick-up truck, R 408, with lights still on and facing outwards towards Zalongou street. Its tank consisted of two compartments between which there existed controlled communication; and in both such compartments there was found a quantity of petrol mixed with diesel oil.

The extent and development of the fire strongly indicate that, shortly before the fire was started,the furniture in the store had been sprayed with a large quantity of petrol mixed with diesel oil.

The owner of the tanker was traced to be one [*728] Panicos Prastitis, the proprietor of the FINA petrolfilling station on the corner of Makarios III Avenue and Ayia Phyla street, in Limassol.

Prastitis, who was called as a witness by the prosecution, has testified that in the afternoon of the day of the fire Appellant 2 - being in the employment of Appellant 1 - bought a hundred gallons of petrol and two hundred gallons of diesel oil for the account of Appellant 1, to be taken to Pareklissia village, where a traxcavator belonging to Appellant

1 was being operated in relation to some Public Works Department project. The said quantities of petrol and diesel oil were put into the tanker and as Prastitis had no available driver it was agreed that Appellant 2 would drive the tanker to Pareklissia. He did not do so at once, however; the tanker was left standing there, at the filling station, with the ignition keys on, for some time and it was still there when the station closed up at 8 p.m. In the meantime Appellant 1 had called at the station during the afternoon and paid for the quantities of petrol and diesel oil which had been purchased by Appellant 2 as aforesaid.

Appellant 1 is the owner of car BU 888. A police constable, P.C.342 Andreas Josephides, has stated in evidence that, shortly after the explosion and fire in the store concerned, he saw this car being driven away from the direction of such store.

On the 30th May, 1966 - two days later – the two

Appellants were traced, and arrested, in Famagusta, [*729] in a private clinic, where they were undergoing treatment

for extensive burns. They both volunteered statements to the police putting forward an alibi in relation to the times material to the arson in question and explaining how they came to suffer the burns, in Famagusta, in a manner totally unconnected with the fire in Limassol; they admitted, however, that the accident which caused to them these burns took place on the same evening as the said fire.

In their statements the Appellants admitted that they had called at the filling station of Prastitis on the afternoon of the 28th May, 1966; but they said that they had done so for the purpose of making a part payment in respect of Appellant's1 current account there; and nothing was mentioned by either of the Appellants about the transaction Involving the tanker R 408.

Neither of the Appellants chose to give evidence on oath in support of his alibi. They made unsworn statements from the dock adopting their previous statements to the police.

The trial Court disbelieved the alibi of the .Appellants, as well as the explanation as to how they came to suffer the burns on their bodies, and it accepted the evidence of Prastitis and P.C. Josephides.

The trial Court has based the convictions of the Appellants on four main grounds, namely, (1) the finding of tanker R 408 In the store, (2) the extensive burns suffered by the Appellants, (3) their false alibi, [*730] and (4) the sighting of car BU 888 being driven away from the fire.

Having gone very carefully through everything which learned counsel for the Appellants have submitted in relation to the issues of the finding of tanker R 408 in the store and of the burns suffered by the Appellants and regarding the conclusion of the trial Court that the Appellants' alibi was a false one, we find that we have not been convinced that the trial Court has erred in relation to any of these matters. On the contrary we are of the view that the trial Court’s conclusions, regarding the linking of the Appellants with tanker R 408, the causation of their burns and the rejection of their alibi, viere properly warranted by the evidence before it.

Regarding, however, the trial Court’s finding that car BU 888, belonging to Appellant 1, was seen being driven away from the store immediately after the explosion and fire therein, the arguments of counsel for the Appellants have indeed succeeded in persuading us that it was not safe for the trial Court to accept as reliable the identification of this car by P.

C. Josephides. We have decided, thus, to approach these appeals on the assumption that the trial Court should not have been satisfied beyond doubt that the car which P.C. Josephides saw driven away from the scene of the crime was in fact car BU 888

We now have to consider whether the convictions [*731] of the Appellants can stand without the identification of car BU 888 In other words whether or not reliance by the trial Court in convicting the Appellants, on the identification of the said car, has led to a substantial miscarriage of justice in the sense of the proviso to section 145(1)(b) of the Criminal Procedure Law (Cap. 155).B

The said proviso to section 145 (1)(b) corresponds closely to the proviso to section 4(l) of the Criminal Appeal Act, 1907, in England; but the English proviso was recently.

amended by the Criminal Appeal Act, 1966, so that the term " siáastantial” has ceased to qualify the words "miscarriage of justice” as it used to

previously and as it still does in the proviso to our section 145(1)(b).

In England the proper approach to the application of the proviso to section 4(1) of the Criminal Appeal Act, 1907, was laid down by the Court of Criminal Appeal, in, inter alia, R. v. Haddy (1944, 1 All E.R. p. 319) and by the House of Lords in Stirland v. Director of Public Prosecutions (1944, 2 All E.R. p. 13).

In R. v. Haddy Humphreys, J., had this to say (at p, 321 et seq.):-

”The proviso runs as follows:

“Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice [*732] has actually occurred”.

"The two key words, if I may use the expression, in that sentence seem to be the word ’substantial’ as a description of the miscarriage of justice, and the word 'actually'. They may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred”.

"Counsel for the appellant argued that we could not give effect to the proviso in this case unless the court was prepared to hold that no jury properly directed could have acquitted the appellant. He based that argument upon a passage in the opinion of Lord Sankey, L.C., in giving his opinion in the House of Lords in Woolmington’s case*; it is the last effective sentence of his judgment. He observed as follows, after reading the proviso to sect. 4 which I have just read, at p. 482:”

"The Act makes no distinction between a capital case and any other case, but we think it impossible to apply it in the present case. We cannot say that if the jury had been properly directed they would have inevitably come to the same conclusion. It was the word 'inevitably' in that sentence upon which counsel for the appellant relied”.

"In our opinion, it would be wrong to give effect to that argument. To accept it would [*733] be to render the proviso practically otiose, for it can never he said with certainty in any criminal case, however strong the evidence for the prosecution, that no jury could he found. to acquit. We are satisfied that Lord Sankey, L.C., was not referring to a jury who might return a perverse verdict hut to a jury of sensible persons anxious to do their duty which is, in the language of the juror’s oath, to return a true verdict according to the evidence. If that he the correct view, the word 'inevitably' becomes merely an adverb of emphasis designed to express the necessity for the absence of any doubt on the part of the court that a reasonable jury properly directed would have returned the same verdict. In the very early days of this court, Lord Alverstone, L.C.J., used the phrase in delivering the judgment of the court:”

"We cannot in this case say that if they had been properly directed the jury must have come to the conclusion which would have supported the conviction".

"In a later case in the same year, 1909, his Lordship in dealing with Stoddart’s case* observed as follows, at p. 245:”

"We think it is open to consideration whether the word 'must' is not too strong, [*734] and whether the proper question is not, whether if properly directed the jury would have returned the same verdict”.

“It seems to us to matter very little what precise words are used so long as the language of the proviso is satisfied and the court is sure that there has been no substantial miscarriage of justice”.

“The proper interpretation of the expression 'substantial miscarriage of justice' occurring in the proviso was the subject of a considered judgment of this court in R. v. Cohen and Bateman*. Reading from p.207, I find these words used by Channell, J., in delivering the judgment of the court, the other members of the court being Jelf and. Bray, JJ.:”

“We have had an opportunity of carefully discussing this case, and we have arrived at our conclusion. Under the statute only one judgment is delivered, and we have, therefore, put into writing our judgment upon the construction of the Criminal Appeal Act, s.4(1)”.

“Then he reads the section itself and discusses it, and deals first with the ground. of appeal that the conviction should be set aside on the ground of a wrong decision of any question of law. He then proceeds as follows, at p.207:” [*735]

“A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, hut merely comes within the very wide words ’any other ground’ so that the appeal should be allowed according as there is or is not a ’miscarriage of justice’. There is such a miscarriage of justice not only where the court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted, and therefore, as there is no power of this court to grant a new trial, the conviction has to be quashed. If, however, the court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events [*736] no substantial miscarriage of justice within the meaning of the proviso ... That statement of the law has stood for 35 years and, so far as we are aware, has never been the subject of adverse comment, though judges in giving the decisions of the Court of Criminal Appeal have used varying languages and many different expressions, including the word ’inevitably’, which does not occur for the first time in the opinion of Lord Sankey, L.C. in Woolmington’s case*.”

"We are convinced that it was not the intention of Lord Sankey, L.C., in that case, or of the other members of their Lordship’s House, who concurred in his opinion, to lay down any different interpretation of the expression ’miscarriage of justice’".

In the Stirland case Viscount Simon had this to say in his judgment (at p. 14-15):-

"Apart altogether from the impeached questions (which the Common Serjeant in his summing up. advised the jury entirely to disregard). there was an overwhelming case proved against the accused. The trial had lasted two full days, but the jury took only a few minutes to consider its verdict and the judge stated that he considered the [*737] Verdict ’perfectly right’. When the transcript is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken. There was, therefore, no miscarriage of justice and this is the proper test to determine whether the proviso to the Criminal Appeal Act, 1907, s.4(1) should be applied. The passage in Woolmington v. Director of Public Prosecutions*, at p. 483, where Viscount Sankey, L.C., observed that in that case, if a jury had been properly directed, it could not be affirmed that they would have 'inevitably' come to the same conclusion should be understood as applying this test. A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence; but the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict. That assumption, as the Court of Criminal Appeal [*738] intimated, may be safely made in the present case. The Court Of Criminal Appeal has recently in R. v. Haddy* correctly interpreted sect. 4(l) of the Criminal Appeal Act and the observation above quoted from Woolmington's case in exactly this sense".

The cases of Haddy and Stirland were followed by the Supreme Court of Cyprus, in applying the corresponding proviso in Cyprus, in Pilavakis v. The Queen (XIX C.L.R. p. 163).

Also, the proviso to our section l45(l)(b) was

applied, on the above footing, in, inter alia, the following cases: Demetriou v. The Republic (1961 C.L.R.P.309); Makris

v. The Police (1961 C.L.R. p.330); and Zacharia v. The Republic (1962 C.L.R. p. 52).

It appears that apart from the absence nowadays of the term "substantial" from the amended English proviso - which has rendered the English proviso less available for application against an appellant than our own proviso - the approach to the matter by appellate Courts in England has not changed from what it has been in the past.

In a recent case decided by the House of Lords, Commissioners of Customs and Excise v. Harz (1967 1 All E.R. p.177) Lord Morris had this to say (at p. 186):-

"Though the circumstance that on a first trial a jury has disagreed will be noted by the Court of Criminal Appeal if considering the proviso after a conviction in a second trial [*739] there should, in my view, be no replacement or abandonment of the principle of the approach indicated in Stirland v. Director of Public Prosecutions* In his speech in that case Viscount Simon, L.C., in referring to the proviso, said that it assumed a situation where 'a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict'”

“It is to be observed that the test to be followed is not that of seeking to assess what the particular jury that heard the case would or must have done if it had only heard a revised version of the evidence. For the purpose of the test the appellate court must assume a reasonable jury, and must then ask whether such a reasonable jury, hearing only the admissible evidence, could if properly directed have failed to convict”.

“If in the present case the impugned evidence is to be excluded, the process in invoking the proviso becomes that of considering whether a reasonable jury who had heard only the admissible evidence would, after a proper direction in a summing-up, without doubt have convict ed."

Bearing all the foregoing in mind, we are of the view that the trial Court - as well as any other Court [*740] trying the Appellants - on being faced with the inescapable inferences to be drawn from the matter of the tanker R 408, from the extensive burns on Appellants bodies (which covered 25%-30% of the surface of their bodies) and from their false alibi would, without doubt have convicted them, even without crediting as reliable the evidence relating to the sighting of car BU 888; therefore, no substantial miscarriage of justice in the sense of the proviso to section 145(l)(b) of Cap. 155 has actually occurred.

In the circumstances these appeals fail and have to be dismissed accordingly.

As stated earlier the trial Court has added a new count for attempt to set fire to the furniture in the store and has convicted the Appellants thereon, instead of on the count charging the completed offence of arson. It has taken such a course because in its opinion the explosion in the store and the ensuing fire occurred prematurely. With respect to the trial Court, we cannot agree with the view it has taken. If a person is about to set fire unlawfully and such fire starts earlier than as planned by him, or in a manner different than as intended by him, through a mishandling of his preparations for the purpose, he should still, in law, be found guilty of the completed offence of arson, and not merely of an attempt at arson. We, therefore, have decided to direct that the conviction of the Appellants on the count of attempted arson should be set aside, and that they should be convicted instead of the arson of the [*741] furniture in question, contrary to section

319 of Cap. 154. As regards sentence we have decided that they should be sentenced each to five years' imprisonment, as from the date of their original convictions by the trial Court; though the offence of arson carries a greater sentence than the attempt to commit arson we have decided not to pass on the Appellants any heavier sentence, as the sentence of five years’ imprisonment is in our opinion a sufficiently severe one.

Appeal dismissed.

* (1935) A.C. 462

* R. V. Stoddart (1909) 2 Cr. App. Rep. 217

* (1909) 2 Cr. App. Rep. 197

* (1935) A. C, 462

(1944) 2 All E.R. 13

* (1935) A.C. 462.

* (1944) 1 All E.R. 319

(1935) A.C.462

* (1944) 2 All E.R. 13