Criminal appeal dismissed; conviction upheld on smuggled goods charges despite reliance on uncorroborated accomplice testimony.

[*138] 1968 February 29

(TRIANTAFYLLIDES, STAVRINIDES, LOIZOU, JJ.)

APPELLATE JURISDICTION

Michael Ioannou Liatsos,

Appellant,

v.

The Polices

Respondents.

(Criminal Appeal No. 2978).

Criminal Law - Conviction - Offences contrary to sections 208(1), 209(a) and 209(o) of the Customs Management Law, Cap.313 (as amended) - Evidence - Accomplices - Corroboration -Reliance by trial Court on sufficiently corroborated evidence of an accomplice - No substantial miscarriage of Justice - The Criminal Procedure Law, Cap. 155, section 145( 1)(b), proviso.

Evidence - Accomplice - Corroboration - Wife's of accomplice evidence as corroboration of husband's evidence.

Words and Phrases - "Privileged goods” in section 2 of the Customs Management Law, Cap.315 (as amended) and Appendix M to the Treaty of Establishment of the Republic dated 16th August, 1960.

Customs - The Customs Management Law, Cap.315 (as amended) - Offences contrary to sections 208(1), 209(a) and 209(o) thereof

- See under "Criminal Law" above.

Accomplice - Evidence of - See under "Criminal Law" above.

L. Clerides with E. Liatsos, for the Appellant.

S. Georghiades, Counsel of the Republic, for the Respondents.

JUDGMENT

The Judgment of the Court was delivered by:-

TRIANTAFYLLIDES. J.: The Appellant appeals against his conviction, on the 12th December, 1967, by the District Court of Nicosia, in respect of three offences as follows:-

(a) Possession of smuggled goods, contrary to section 208(1) of the Customs Management Law, Cap. 315, [*139] as amended by the Customs Management (Amendment) Law, 1961, (Law 26/61).

(b) Evading payment of customs duty contrary to section 209(a) of Cap. 315, as amended by Law 26/61.

(c) Possession of privileged goods contrary to section 209(o)of Cap. 315, as amended by Law 26/61.

All three offences were found to have been committed by the appellant in respect of the same set of facts.

He was sentenced to one year's imprisonment, in relation to each of the two possession offences - the sentences to run concurrently - but, in the circumstances, no sentence was passed on him in relation to the offence of evading the payment of customs duty.

The appellant did not appeal against sentence.

The appellant was arrested by the police on the night of the 6th September, 1967, in the following circumstances:

At about 20:45 hours.- his car, AY270, was seen by the police being driven along the old Famagusta-Nicosia road, between the 5th and 6th milestones, from the direction of Famagusta towards Nicosia.

At about 20:50 hours, at a spot again between the 5th and 6th milestones of the said road, the police stopped a lorry, AD383, loaded with NAAFI spirits and driven by one Georghios Sofocli of Akhna, The police boarded the lorry and they gave instructions to the driver to continue driving towards Nicosia.

Then, at about 20:55 hours, and between the 4th and 5th milestones of the same road, the car of the appellant [*40] was seen coming at a low speed from the direction of Nicosia; the person at the wheel of that car raised his right hand and made a signal to the driver of the lorry, who tried to signal hack by blowing hishorn but he was not allowed to do so by the police.

Immediately afterwards the car of the appellant turned back and was seen proceeding again towards Nicosia; upon that it was stopped and it was found that the driver of the car was the appellant himself. He was arrested and, after being cautioned, he said that he had no idea and that he was just then coming from Famagusta.

According to the evidence of Sofocli and of another prosecution witness, Petros Loizou - who was arrested soon after the appellant, on the same night, while waiting in a car parked near the Pallouriotissa cemetery on the old Famagusta-Nicosia road - the appellant was, on that night, driving his car, on the road in question, in execution of a common design involving transporting the load of the lorry of Sofocli from his house at AKhna and handing it over to Loizou in return for the agreed amount of £1.,000. Loizou has testified, also, that, while he was waiting in the car near the Pallouriotissa cemetery, the appellant had come there and asked if everything was all right and then he had left in order to give instructions to the lorry-driver, Sofocli; that was soon before they were all arrested. ]

The learned trial Judge accepted the evidence of Sofocli and Loizou; but he, rightly, treated them as accomplices and, having decided that corroboration of their evidence was required, he found such corroboration in the evidence [*141] of the wife of Sofocli, Georghoulla - who corroborated only the evidence of her husband - and in. the police evidence regarding the aforementioned night-time movements of the appellant, immediately prior to his arrest.

It is convenient, at this stage, to deal with the two main submissions made by counsel for the appellant in arguing this appeal:

It has been submitted that the trial Court erred in relying on the evidence of Sofocli and. Loizou, in that such evidence was found by the Court to be unreliable,and, thus, there could be no question of it being safely acted upon even if corroborated by other evidence.

It has, further, been submitted that,in any case, the trial Court erred in treating the evidence of the wife of Sofocli as corroboration of the evidence of her husband.

The part of the Judgment of the trial Court relating to the evidence of Sofocli and Loizou reads as follows:-

"I have considered the evidence of both accomplices and I have come to the conclusion that it would be unsafe to act upon their evidence without corroboration for the following reasons:

"A. Evidence of G. Sofocli. The evidence of this witness relating to the first occasion on which he met the accused is not very convincing and it seems that the witness was withholding something. It is improbable that the cases were placed in the barn by the accused without first obtaining permission to do so or without making some sort of arrangements for the unloading [*142] of the goods. It is an operation that would have entailed the use of a lorry and in all probability the services of a driver and porters. It is not likely therefore that the witness did not know about the operation beforehand.

"B. Evidence of Petros Loizou. This witness is a person v/ith previous convictions involving dishonesty and did not impress me as a person to be implicidly trusted by the Court. Furthermore his complicity to the offences gives an idea of his nature and character. His evidence must therefore be approached with the utmost care and it will be dangerous to accept it without corroboration".

It is on the basis of the above observations of the trial Judge that counsel for appellant have submitted that the evidence of Sofocli and Loizou could not have been properly relied upon for the purpose of convicting the appellant.

It may, of course, happen that the evidence of an accomplice is of such a low quality as not to be reasonably acceptable, and in such a case there could net arise any question of it being corroborated. It is useful in this respect to bear in mind what Yassiliades, J. (as he then was) had to say in Zaharia v. The Republic, (1962, C.L.R., p. 52, at p. 62) regarding corroboration:-

"In connection with evidence, it does not mean completing evidence, which, in itself, is incomplete; or insufficient in extent; or unacceptable. It means strengthening evidence which in itself is [*143] sufficient in extent, and is reasonably acceptable in quality, but is lacking in the degree of certainty required by the court's conscience for a safe conviction in a criminal case. It is here that the corroborative evidence comes into play to give the support required”.

In the present case we are not of the view that what the trial Judge has said about the evidence of Sofocli and Loizou is to be construed as denoting that he regarded such evidence as being so unreliable that it could not be acted upon even if corroborated; we think that he was, only, trying to explain, as fully as possible, why he had decided not to act on the uncorroborated evidence of the said two witnesses, who were accomplices. It may be, however, that in doing so he has used terms, in relation to Sofocli, which could be taken as indicating that he looked upon his evidence as being of rather a low quality; so, ex abundante cautela, we have decided to approach this case on the assumption that Sofocli’s evidence could not be relied upon.

There remains, nevertheless, the evidence of Loizou, which has been summarized as follows in the Judgment of the trial Court:-

"Petros Loizou stated that he was approached by two persons and furnished with a list of alcoholic drinks, valued at about £3.000.- for which he offered £1,000.-. On the 5th or 6th of September, 1967, he went to Alamo Casino and there he met the accused with whom he agreed to buy the goods set out on the list for £1,000. -, From there they went to a small forest ("Dasaki") [*144] where they met G. Sofocli and from there they all drove in Sofoclis' car to the latter's house at Akhna. There they loaded the lorry with cases containing alcoholic drinks and after that the witness drove to "Dasaki" and from there to Nicosia accompanied by the two other persons. On coming to Nicosia he got money and then accompanied by the same two persons, proceeded to the cemetery. Whilst there accused came and asked them if everything was alright and then he left in order to give instruction to the lorry driver. Later on they were all arrested".

Nothing that the trial Court has said about this witness, or anything else on record, could properly lead us to the

conclusion that his evidence should not have been relied upon once it was sufficiently corroborated. We are of the view that on the basis of Loizou's evidence, as corroborated by the evidence regarding the comings and goings of the appellant, on the night of the 6th September, 1967, along the old Famagusta-Nicosia road, the trial Judge would without doubt have convicted the appellant as he has done, even if he had chosen not to rely at all on Sofocli's evidence. Thus, reliance by the trial Judge on Sofocli’s evidence could not, in any case, be held to have resulted in a substantial miscarriage of justice and, in view of the proviso to section 145(l)(b) of the Criminal Procedure Law, Cap. 155, this appeal cannot succeed on such a ground (see Polycarpou v. The Republic, 1967, 6 J.S.C., p. 725). [*145]

Because of our conclusion regarding the inevitability of the conviction of the appellant, even without reliance being placed on the evidence of Sofocli, the question of whether or not the trial Court correctly treated as corroboration of the evidence of Sofocli the evidence of his wife ceases to be of any practical importance, and we need not enter into it. We would like, however, to state, in this respect, that we do agree with the trial Court that such evidence could be treated as corroboration of her husband's evidence; but we would add that it is necessary in such a case to treat evidence of this kind with great care, in the light of R. v. Allen and Evans (1948, Cr. App. R., p.314).

Before concluding this Judgment we should dwell, shortly, upon two further topics:

First, we think that counsel for the appellant quite properly did not press the submission that the goods concerned were not privileged goods; such submission appears to us quite untenable on the basis of the evidence adduced in this Case and in view of, inter alia, the definition of privileged goods in section 2 of Cap, 315, as amended by Law 26/61, and of Appendix M to the Treaty of Establishment of the Republic dated the 16th August, 1960. Further, in the light of section 2.39 of Cap. 315, as amended by Law 26/61, and in view of the circumstances in which the goods concerned were being handled, the conclusion that they were smuggled goods and that it was intended to evade the payment of customs duty in respect thereof was fully warranted.

Secondly, we find no substance in the contention of the appellant that, assuming that all the goods in respect [*146] of which he was charged were not proved to be NAAFI goods then his conviction is bad.

Such contention can only he treated as relating to his conviction for possession of smuggled goods, because in the particulars of the relevant count reference is being made to lists of specific items, whereas in the particulars of the counts for evading the payment of customs duty and for possession of privileged goods no specific items are referred to.

As the value of the goods, in respect of which the appellant has been convicted of possession of smuggled goods, is not a necessary ingredient of the offence in question,we do fail to see how the non-establishment of the fact that any part of such goods were NAAFI goods could affect the validity of the conviction of the appellant, once there can be no doubt at all that, to say the least, a large part of the goods concerned were established to be NAAFI goods.

For all the above reasons this appeal fails and is dismissed accordingly; but we have decided to make an order that, the appellant’s imprisonment should run from the date of his conviction.

Appeal dismissed.

Appellant's imprisonment

to run from the date of

his conviction.