Supreme Court allows appeal against acquittal, convicting defendant for grazing goats in a prescribed village.

[*132] 1969 January 24

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

APPELLATE JURISDICTION

The Attorney-General of the Republic,

Appellant,

v.

Takis Herodotou,

Respondent.

(Criminal Appeal No. 3048).

Appeal - Appeal against acquittal by Attorney-General - Determined under section 145(3) (a) (i) of the Criminal Procedure Law Cap. 155.

Goats Law Cap. 66 - Grazing goats within boundaries of a prescribed village - Prescribed village - Publication of notice in official gazette sufficient proof that a village is a “prescribed village.”

Goats Law Cap. 66 - Section 13(1) - Forfeiture of goats no longer mandatory - Article 12.3 of the Constitution.

Criminal Procedure - Acquittal - Appeal by Attorney-General - See under “Appeal”.

K. Talarides, Senior Counsel of the Republic, for the Appellant.

Respondent in person.

JUDGMENT

The Judgment of the Court was delivered by:-

VASSILIADES, P.: This is an appeal by the Attorney-General of the Republic, under section 137(1)(a) of the Criminal Procedure Law, Cap. 155, against the acquittal of the respondent in the District Court of Limassol, at the trial upon a charge under the Goats Law (Cap.

66 and its Amendments 1957-1960). The respondent was charged for grazing, or

suffering [*133] to graze, a flock of 80 goats and kids, on September 13, 1967, in the area of the village of Ay. Therapon, in the district of

Limassol, which is a “prescribed village” under the provisions of section 4 of the Goats Law. The appeal is taken mainly on the ground that the law was wrongly applied to the facts of the case.

The respondent, an inhabitant of the neighbouring village of Alassa, in the same District, is the owner of the flock which on the material day was found grazing at locality “Fteleshi” which lies between the villages of Alassa and Ay. Therapon and is found within the boundaries of the latter village. Both these villages, however, are admittedly “prescribed villages” under the Goats Laws.

In his evidence, the respondent - who conducted his own case both in the District Court and before this Court - admitted that it was within his knowledge that the villages of “Alassa, Lofou, Ay. Therapon with its old boundaries and other villages in the area” were declared to be “prescribed villages” under the Goats Law. His case, as far as one can gather from the record, was (a) that his flock was not found in the locality in question, on the material day, and (b) that in any case such locality was not within the boundaries of the village of Ay. Therapon when that village was declared a prescribed area in 1916; but it was subsequently added thereto, at about the year 1922. In such circumstances, the respondent submitted, the locality in question is not, in law, a prescribed area. “I came to know that localities ‘Fteleshi’ and ‘Kato Phinikas’ were included in the boundaries of Ay. Therapon village (the respondent added) in about 1922, from a certain Alkiviades [*134] Tsitsis of Ay. Therapon, a shepherd, in 1964. During that time, i.e. in 1922, I was not yet born.” Respondent’s age in the charge is given as 33 years old.

The learned trial Judge took the view that it was “both material and essential” for the prosecution to prove that the locality in question was either within the boundaries of. Ay. Therapon village on the date on which it was declared as such, or, if added later, it was so added after June 1, 1948, and not before; and he concluded that he could not find that the locality in question is included in the boundaries of Ay. Therapon village at all “despite the fact that accused himself has stated that since 1922 it is so included, “because such evidence is hearsay;” and he acquitted the respondent of the charge.

Learned counsel for the Attorney-General submitted that the evidence amply established the allegations in the charge, which were in fact admitted by the accused himself from the witness box; and that the trial Judge, misdirecting himself on the point, reached an erroneous conclusion.

After hearing both sides this morning, we have no difficulty in allowing the appeal. The essence of the charge lies in the fact that the goats in question were being grazed within the boundaries of a prescribed village; the village of Ay. Therapon in this case. The publication of the statutory notice in the official Gazette was sufficient proof that the village of Ay. Therapon is a prescribed village for the purposes of the statute. There was evidence that the area in which the flock was found grazing on the material date was within the “boundaries” of the said village, as officially accepted, which fact the accused admitted knowing. This, in [*135] our opinion, sufficiently established the charge; and the appeal against acquittal must succeed.

Determining this appeal under section 145(3) (a) (i) of the Criminal Procedure Law, we set aside the Judgment of the trial Court and convict the respondent as charged. Before proceeding to pass sentence on the respondent under the same section, we would like to hear both sides on the question of sentence.

Mr. Talarides had nothing to say.

Respondent: After my conviction it is my intention to sell my goats and I apply for the necessary time to enable me to dispose of the flock.

Court to respondent: Your decision to dispose of your flock is, we think, very sound and useful to all concerned. We have no power to make any directions for time regarding such disposal. It is a matter for other authorities to deal with; and we have no doubt that the office of the Attorney-General will give the appropriate directions and advice in the matter.

We shall now proceed to pass sentence. The punishment provided by this particular statute is fixed under section 13(1) of the statute at fifty mils for every goat, together with an order for the confiscation of the goats. This particular provision of the Goats Law, however, was considered by the Supreme Constitutional Court in the case of the District Officer of Kyrenia v. Adem Salih of Agirda in 1962 (3 R.S.C.C. p. 69). The Court held, following a previous case, that the [*136] forfeiture of the animals amounts to a punishment and should be

read subject to the provisions of para. 3, Article 12, of the Constitution; the Court having “a discretion whether or not to

order, according to the merits of each case, the forfeiture of a goat or kid.”

In the circumstances of this case and particularly the fact that according to respondent’s statement he has never been prosecuted for grazing his goats in that locality since he established his mandra in the vicinity about three years ago, we take the view that for this first prosecution there should be no order for forfeiture; especially as the respondent intends to do away with the flock of the goats in question.

The number of goats in the charge brings the penalty to a total amount of £4 which we impose as sentence; without any order for confiscation.

Appeal allowed.