Criminal appeal allowed; conviction quashed due to substantial miscarriage of justice from admitting an inadmissible police statement.

[*1324] 1972 January 5

(TRIANTAFYILIDES, P., STAVRINIDES, MALACHTOS, JJ.)

APPELLATE JURISDICTION

Costas Koutrouzas,

Appellant,

v.

The Republic,

Respondent.

(Criminal Appeal No.3292).

Evidence - Judge's Rules (revised 1964.) - Statement to police by person in custody - And at a time when police had enough evidence to prefer a charge against him - Principle

(d) in Appendix A to the Rules - Protection afforded by Rule III(a) not accorded to appellant - Moreover though he refused to sign statement same was not countersigned by another policeman - Statement inadmissible.

Miscarriage of Justice - "Substantial miscarriage of Justice" - Through admission of inadmissible statement - Section 145(1) (b) of the Criminal Procedure Law, Cap.

155 - Proviso to the said section not applied.

Judge's Rules - Pre-1964 and 1964 Rules - Applicability of to Cyprus.

Criminal Procedure - Appeal - Conviction for possession of narcotics - Quashed on the ground of substantial miscarriage of justice - Section 145(1)(b) of the Criminal Procedure Law, Cap. 155 - Substituted by conviction of an offence of which appellant might have been convicted by the trial Court on the evidence adduced, namely that of allowing premises in his possession to be used for smoking of narcotics - Section 145(1) (c) of the Criminal Procedure Law (supra).

T. Papadopoullos, for the Appellant.

S. Nicolaides, Counsel of the Republic, for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES, P.: The appellant has [*1325] appealed against his conviction, by an Assize Court in Nicosia, on a count charging him with possession of cannabis resin, contrary to sections 3,

6 and 24 of the Narcotic Drugs Law, 1967 (3/67) and regulation 5 of the Narcotic Drugs Regulations 1967; the particulars of such count being that on the 27th day of April, 1971, the appellant had in his possession 3.6 grams of cannabis resin without the authority of the Minister of Health.

He was sentenced to 18 months’ imprisonment on the 18th October, 1971; and he has not appealed against this sentence.

The case for the prosecution was mainly based on the evidence of witness Phani Spathi, a night-club artiste, and on the allegedly correct contents of a statement which was made by the appellant, a few hours after his arrest, on the 27th April, 1971, at the Iarnaca Road Police Station in Nicosia. This statement appears recorded in the note-book of police sergeant Panikos Hji Loizou to whom the appellant made, at about 8 p.m., a statement which he refused to sign.

The basic issue on which, in the circumstances of this case, the trial Court had to pronounce was whether the appellant knew about the existence of the aforementioned quantity of cannabis resin, which was found in a cavity under the sink in the kitchen of his flat, or whether it was placed there by somebody else without appellant's knowledge; the cannabis resin was discovered by the police in the presence 1 of the appellant while the police were searching his flat. [*1326]

It is not in dispute that what was found was cannabis resin and it is, also, not in dispute that in the appellant's pipe, which was found, in his flat, there were traces of cannabis resin; his version has been that the resin belonged to witness Phani Spathi, who had left it in his flat without his knowledge; she insisted, on the contrary, that the resin belonged to the appellant.

Counsel for the appellant has submitted that, in view of section 8 of the Criminal Procedure law, Cap. 155, the aforementioned statement of the appellant to the police should not have been admitted in evidence by the trial Court because it was obtained in a manner inconsistent with the Judges' Rules which were laid down in England in 1964. It has been touched upon in argument, but was not sufficiently argued, that under the said section 8 it may well be that the pre-1964, and not the 1964, Judges' Rules are still applicable in Cyprus; but as it is common ground that under the pre-1964 Rules the statement would in any case be inadmissible, and as having examined the issue of its admissibility. on the same basis as that on which it was argued, namely under the 1964 Rules, we find it, as stated hereinafter, to be inadmissible, we need not decide which set of Rules actually applies:

When the appellant made the statement he was in custody at the Larnaca Road Police Station, As the police had at the time enough evidence to prefer a charge against him - in the sense of principle

(d) in Appendix A to the Judges' Rules, 1964 - for the

offence of possession of the [*1327] cannabis resin which was found in his flat, the protection afforded by Rule III(a) of the said Judges' Rules ought to

have been accorded to the appellant in obtaining his statement (see The Republic v. Pierides (1971) 7 J.S.C. 1020); and it has been conceded that this was not done. Moreover, though the appellant refused to sign the statement; another police officer, who was present, was not requested to countersign the statement. We formed, therefore, the opinion that the trial Court ought to have treated the statement as being inadmissible, especially as it was the line of the defence that what the appellant stated was not correctly recorded.

Having held that the said statement ought not to be regarded as forming part of the case against the appellant we have considered whether this is a proper case for the application of the proviso to section 145(1)(b) of Cap. 155 and we have reached the conclusion that we cannot say, without doubt, that he would have inevitably been convicted on the remainder of the evidence; mainly that of prosecution witness Phani Spathi. It is, in our view, an important consideration that the contents of his statement in question may have influenced considerably the outcome of the issue as to whom of the two, the appellant or Phani Spathi, the trial Court would believe regarding their conflicting versions about the ownership and possession, as well as the knowledge of the existence, of the quantity of cannabis resin found hidden in the appellant’s flat, We, therefore, find that through the admission of the statement there has been a substantial [*1328] miscarriage of justice, in the sense of section 145(1) (b) of Cap. 155, and the conviction of the appellant, and the sentence imposed upon him, have to be set aside.

In deciding not to apply the proviso to section 145(1)(b) of Cap. 155 we have, inter alia, borne in mind the recent judgments of the Court of Appeal (Criminal Division) in England in the cases of Brown, 35 Cr. App. R. 478, and Midwinter,

55 Cr. App. R. 523; though both these two judgments relate to the proviso to section 2(1) of the Criminal Appeal Act, 1968, which is not as closely similar to the proviso to our section 145(1) (b) of Cap. 155 as was the proviso to section 4(1) of the Criminal Appeal Act, 1907, we have derived guidance from these judgments as there are references in both of them to case-law relating to the application of the proviso to section 4(1) of the Criminal Appeal Act, 1907.

We have been invited by counsel for the respondent to act under section 145(1)(c) of Cap,

155 and to convict the appellant of an offence of which he might have been convicted by the trial Court on the evidence which has been adduced, namely that of allowing premises in his possession - his flat - to be used for the

smoking of cannabis resin, contrary to section 7(a) of Law 3/67. Having listened carefully to all that the learned counsel for the

appellant had to say against the adoption by us of such course, we are of the opinion that we have to convict the appellant of the said offence, because there are statements of his own, in giving evidence before the trial Court, which establish his guilt of such offence beyond any reasonable doubt. [*1329]

The appellant has testified that, on the same day to which relates the count in respect of which he was convicted by the trial Court and acquitted by us, Phani Spathi smoked in his own pipe in his flat a substance similar to the one found later by the police under the sink in the kitchen of the flat; and it is in evidence, and not disputed, that in the pipe there were found traces of cannabis resin; also, the appellant stated in his evidence that on that occasion he allowed Phani Spathi to smoke the pipe containing the narcotic drug but he told her that he would never allow her again to come to his house for such a purpose.

The appellant is, therefore, convicted by us on a new count charging him with committing an offence, contrary to section 7(a) of Law 3/67, namely that on the 27th April, 1971, he allowed Phani Spathi to smoke, in premises in his possession, cannabis resin. Before we pass sentence on him we propose to hear counsel on this matter.

(Mr. Papadopoulos addresses the Court in mitigation. Mr. Nicolaides stated that he does not wish to say anything).

TRIANTAFYLLIDES, P.: We have taken into account what has been submitted by counsel for the appellant in mitigation. There is no doubt that the appellant committed the offence in question because of his amorous relationship with Phani Spathi and that this is not a case in which premises have been allowed to be used for the purpose of smoking narcotics with a view to financial gain from such use. [*1330]

Exercising great leniency in view of the special circumstances of this case we have decided to pass on the appellant a sentence of nine months' imprisonment which is to run from the date when he has been sent to prison by the trial Court.

Appeal allowed.