Supreme Court allows appeal against acquittal for defilement due to trial judge's failure to consider witness corroboration evidence.

[*1111] 1972 July 6

(TRIANTAFYLLIDES, P. ,A.LOIZOU,MALACHTOS JJ. )

APPELLATE JURISDICTION

The Attorney-General of the Republic,

Appellant,

v.

Kyriacos Chrysanthou Petrou,

Respondent.

(Criminal Appeal No. 3336).

Criminal Procedure - Appeal - Appeal from an acquittal of offence of defilement of a young girl - On the ground that the law was wrongly applied to the facts - Section 137(1(a)(iii) of the Criminal Procedure Law, Cap. 155 - Corroboration of complainant’s evidence - Required not by a rule of law but by a rule of practice - Failure of trial judge to deal with a particular fact, which should have been considered in order to determine whether there existed corroboration in accordance with said rule, amounts to misapplication of the law to the facts of the case - Appeal allowed.

Criminal Procedure - Evidence - Corroboration – Sexual offences

- Rule of practice requiring corroboration of complainant's evidence - Can be properly treated as coming within the ambit of the term "law" in section 137(1)(a)(iii) of the Criminal Procedure Law, Cap.155.

Evidence in Criminal Cases - Defilement of a girl of 15 years of age contrary to section 154 of the Criminal Code Cap. 154 - Evidence - Corroboration - Required not by a rule of law but by a rule of practice.

A.Frangos,Senior Counsel of the Republic,with C.Kypridemos, for the Appellant.

Y.Agapiou with S.Papakyriacou , for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES,P.: In this case the [*1112] Attorney-General of the Republic appeals against the decision of the District Court of Limassol whereby the respondent was acquitted of the offence of defilement of a young girl fifteen years of age under section 154- of the Criminal Code, Cap. 154. The appeal has been made under section 137(1) (a) (iii) of the Criminal Procedure Law, Cap. 155, on the ground that "the law was wrongly applied to the facts."

What happened is that when at the close of the case for the prosecution counsel for the respondent - at that time the accused - submitted that a prima facie case had not been made out against his client sufficiently to require him to make a defence, the trial court decided that it was not prepared to act on the uncorroborated evidence of the complainant and that as in the rest of the evidence adduced there existed no corroboration of her evidence the respondent ought to be discharged.

The count of defilement, in respect of which the respondent was acquitted, related to events which took place on the 21st day of September,1971, at Ayios Ioannis (Agrou); on that day, at about 9 p.m., the respondent was with the complainant in a room of his house and there, according to the complainant, he proceeded to have carnal knowledge of her.

There was given evidence by prosecution witness Savvas Mappourides that at about 9 p.m. on the 21st September,1971, he saw the respondent and the complainant entering respondent's room and that, while watching through an aperture on the wall [*1113] of the room, he noticed the respondent taking hold of both arms of the complainant and pushing her away from the aperture. The complainant’s evidence in this respect is that, while in the room, the respondent embraced her and then went on have sexual intercourse with her.

The learned trial judge when dealing with the issue of corroboration did not refer to the above-mentioned evidence of Mappourides.

In a case such as the present one corroboration of the evidence of the complainant was required not by a rule of law but by a rule of practice (see, inter alia, Makris v. The Police, 1961 C.L.R. 330, and Theodorou v. The Police, (1971)

11 J. S. C.1404). Such rule of practice is based on the same notion as the rule of practice requiring corroboration of the evidence of an accomplice and so it "deserves all the reverence of law" (see R.v.Farler, 8 C.& P.107). In relation to the rule in question Vassiliades, J., - as he then was - has stated in the Makris case (supra at p. 336): "So long as the reactions of human nature to social rules regarding sex are as they have been known to be for many years past this well established rule cannot be relaxed without jeopardizing justice in such cases." We think, therefore, that such rule of practice can be properly treated as coming within the ambit of the term "law" in section 137(1) (a) (iii) of Cap. 155. [*1114]

In our view in a case such as this one the law may

be applied wrongly to the facts, in the sense of the said section 137(1)(a)(iii), by either finding wrongly in law that a

particular fact does not amount to corroboration or by omitting to deal with a material fact which ought to be considered in order to determine whether there exists corroboration. In this case we are faced with the latter of these two alternative situations: The trial judge took the view that the "presence" of the complainant in the room of the respondent did not amount to corroboration because, in the light of relevant considerations, it was "also consistent with innocence". But, as stated, the judge did not deal with the fact that on the night of the 21st September 1971, when the complainant alleges that the respondent had carnal knowledge of her, the complainant was not merely present in the respondent’s room but she was there and then seen, by witness Mappourides, being taken hold of by the respondent and being pushed away from the aperture through which somebody outside the room could see what was happening therein.

In our view by failing to deal with what witness Mappourides saw as aforesaid - (and we express no opinion whether his relevant evidence should have been treated as credible or as corroboration of the complainant’s evidence)- the trial judge omitted to deal with a particular fact which should have been considered in order to determine whether there existed corroboration, in accordance with [*1115] the relevant rule, of the evidence of the complainant; and, thus, there has been a misapplication of the law to the facts of the case.

This appeal, therefore, is allowed and a retrial is ordered before another judge of the District Court of Limassol.

Appeal allowed.

Retrial ordered.