Court partially allowed assault charges against police but acquitted on drunkenness due to lack of medical evidence.

[*1234] 1972 September 25

(ARTEMIDES, D.J.)

IN THE DISTRICT COURT OP LARNACA

Police,

v.

Andreas Christofi Plastiras,

Accused.

(Case No. 3629/72).

Criminal Law - Police - Execution of duty - Assaulting police officer in due execution of his duty - Section 244(b) of the Criminal Code, Cap. 154 - Police endeavouring to keep the peace by suppressing the disturbance accused was creating - And arresting accused after he had committed offences punishable with imprisonment - Held to be acting in due execution of their duty.

Criminal Law - Drunkenness - Section 94(1) of the Criminal Code Cap. 154 - Accused walking in a zig-zag manner - Not examined by doctor and not submitted to any test to verify his drunkenness - Not behaving like a drunkard and not stammering - Acquitted.

Police - Execution of duty - See under "Criminal Law".

Police Inspector A. Epiphaniou, for the Prosecution.

Ch. Sozos, for the Accused.

JUDGMENT

The following judgment was delivered by:-

ARTEMIDES- D.J.: Accused is charged [*1235] on eight counts as follows:

Count 1: For behaving disorderly whilst he was drunk contrary to section 94(1) of the Criminal Code (Cap. 154).

Counts 2. 3 and 4: For assaulting three police constables in the due execution of their duty contrary to section 244(b).

Counts 5, 6 and 7: For insulting the same policemen in a manner likely to provoke a person present to commit an assault contrary to section 99 and

Count 8: For disturbance contrary to section 95.

The case for the prosecution has been presented by four witnesses, all peace officers; P.W.1, F.W.2 and P.W.4 being the ones who, as alleged by the prosecution had been assaulted in the due execution of their duty and insulted by accused.

All the above witnesses for the prosecution have given me the same account of the facts and circumstances of the case which, very briefly, are as follows:

Police Sergeant Victor Ioannou P. W. 1, and police constable Theophanis Efremi P.W.4, were on patrol duty at about 1 a.m. of the 10.6.1972 at Zenon Pierides Street, near Pallas cinema square in Larnaca. They stopped their car in the square and there they met with police Sergeant A.. Kyriacou P.W.3, with whom they started talking. As they were so talking, they saw a group of four people coming [*1256] towards their direction from Thermopylon Street. They were coming from "Lions" bar. The said group was formed by accused, P. C. 1987 Georghios Nicolettis P.W. 2, A. Vounnos and Andreas Iacovides, D.W.1. Accused, who was walking in front of

the others, when he approached the police car and saw P.W.1 said to him "Ρε Βικτωρή παρακρατικέ Ιεχωβά".

Perhaps it is the right place to state that all the persons concerned in the incident knew each other personally. P.W.1, noticed that accused was walking zig-zag on the road and formed the opinion that he was drunk. He therefore asked his friend D.W.1, to take accused home which D.W.1, advised accused to do. Accused, however, started pushing D.W.1, whilst shouting at the policemen, "……….". Accused proceeded a bit further from the police car continuing shouting in the same manner, P.W.2 approached accused and advised him to go home, but accused pushed P.W.2 as well and shouted at the policemen again the same phrases and started hitting with his hands on vehicles which were parked in the street. P.W.1, on seeing accused pushing P.W.2, approached them and after he arrested accused explained to him the reasons of his arrest which were, for assaulting the police officer and public disturbance. He also cautioned him according to the law. Accused refused to follow P.W.1 to the police car. He started pushing him and P.W. 4 as well, who had gone towards accused with P.W.1. P.W.1 and P.W. h, grabbed the arms of accused and tried to pull him towards the police car, [*1237] whilst accused, was pushing them trying to free himself from them. At last P.W.1 and P.W.4 managed to take accused to the police car but accused refused to enter it demanding a warrant for his arrest. He also hit with his fists on the police car. P.W.3, then intervened and advised accused that he had better not resist arrest, because such resistance would have adverse effects on him. Accused then calmed down and he said that he would go to the station if his friends A. Vounnos, D.W.l and P.W.3 were to go too. The policemen acceded to his demand to avoid further worsening of the situation. Prom the above incident quite a disturbance was created and a number of people gathered around the scene.

The story for the defence, as presented by accused on oath and D.W.1, is quite different in substantial material particulars. It is briefly as follows:-

When accused approached P.W.1, it was

P.W.1 who first told him "Που είσαι ρε Πλαστήρα παρακρατικέ έχεις δολλάρια να μας δώσης"; Accused

then replied joking "Εγώ μπορεί να είμαι παρακρατικός εσύ όμως είσαι Ιεχωβάς".

It is the allegation of accused, that he used to joke with P.W.1 in this manner, as they knew each other quite well. Accused then proceed to his car when he heard a voice behind him saying,

apparently to P.W.1, "Αν σε ύβριζεν κάποιος έτσι θα τον έπερνες μέσα, αλλά επειδή είναι ο Πλαστήρας φοάσαι ". Accused

got crossed of that and he wanted to go back and enquire who said the above and why P.W.2 told him to forget it and go home but accused insisted [*1238] and he pushed him aside again as a joke. P.W.1 and P.W.4 then arrived near them and P.W.1 asked him to go home. He, however,

insisted that he should find out who said the above words. P.W. 4, then told accused to stop shouting, otherwise they would take him in and

"Θα σου δείξουμεν". Accused said that he did not do anything to be arrested for and

further he was afraid to follow them because of the intimidation by P.W.4. It is the allegation of accused that upon that he was grabbed by P.W.1 and P.W.4 by the neck and he was dragged towards the police car, which he entered after his conditions were

complied with. Accused admitted saying the words "……….", but he was addressing his friends in his company. He further said that when he was

taken into the a car he also said "Εγώ αγαπώ σας ούλλους εσείς γιατί με συλλαμβάνετε"; which the prosecution witnesses

have taken as "........."

Having stated the diverse allegations of facts in the case, I now proceed to malte some observations regarding the legal points involved.

A charge preferred under section 244(b) to be sustained, it must be proved that the assault on the peace officer was committed on him by the accused, whilst the former was in the due execution of his duty.

In the case of Duncan & Jones. (1936)L.J.R. (Kings Bench Division) vol. 105 page 71, the Court of Appeal held that, as it was the duty of a peace officer to prevent a reasonably apprehended breach of the peace, and accordingly [*1239] to prevent the holding of a meeting, which was reasonably apprehended to result in such breach of the peace and he was obstructed by the appellant to do so, such obstruction was committed whilst the peace officer was in the execution of his duty.

Humphreys J., had this to day at page 73:-

"It does not require authority to emphasise the statement that it is the duty of a police officer to prevent apprehended breaches of the peace. Here it is found as a fact that the respondent reasonably apprehended a breach of the peace. It then, as the case rightly states, became his duty to prevent anything which in his view would cause that breach of the peace, While he was taking steps so to prevent a reasonably apprehended breach of the peace, he was wilfully obstructed by the appellant. I can conceive no clearer case within the statute than that".

In the case of Davis v. Lisle (1936)L.J.R. vol.105 (Kings Bench) page 593, the Court of Criminal Appeal consisting of Lord Hewart C.J. Du Parcq and Goddard, J. , held that a peace officer was not in the execution of his duty when he was assaulted by accused, on being asked by the latter to leave his premises whilst he insisted to remain therein and make enquiries about an offence, because after the accused had asked him to leave he was a trespasser on his property. [*1240]

In the case of Robson and Robson v. Hallett (1967) Cr. App. R. vol. 51 page 307, the facts were somewhat similar to the facts in Davis v. Lisle case (supra). A police sergeant and two constables wanted to enquire at a house about a crime which has been committed. The constables opened the garden gate and went to the front door of the house, where they explained the reason of their visit. The sergeant was invited by the son of the occupier into the house but the occupier then ordered him to leave. The sergeant was about doing so when he was attached by one of the appellants. The two constables then ran to the aid of the sergeant and a melee ensued.

The Court of Criminal Appeal found that the peace officers were not trespassers and therefore they were in the execution of their duty. They had an implied consent to enter the yard gate and go to the door of the house, for enquiries, as any other member of the public had, and when the sergeant was attacked the other constables were acting in the execution of their duty to go to his assistance and endeavour to prevent a breach, of the peace.

If the peace officer, when the assault is committed on him is not in the execution of his duty, then, and if the assault is proved, accused may be found guilty of the offence of common assault although such counts has not been added in the charge sheet.

The case of George Wilson

(1955) 39 Crim. App. R. p.12 is clear on this matter. The Lord Chief Justice, Lord Goddard had this to say at page 16:- [*1241]

"An assault with internt to resist arrest is simply one form of aggravated assault, that is to say, it is an assault with circumstances of aggravation which allow a heavier sentence to he passed than in the case of a simple assault. But of course it involves an assault. Here the jury have found the appellant guilty of an assault without aggravation and the law has been clearly laid down over a great number of years that, where a man is charged with an offence, he may be found guilty of a lesser offence of the same quality"

The above principle is embodied in our Criminal Procedure Law, (see section 85(l)).

Reverting to the present case, it is the submission of Counsel for accused, that the peace officers were not in the due execution of their duties in that, the arrest of accused was not justified in law and therefore illegal. Accused had a right to resist unlawful arrest and his assaulting the peace officers, by pushing them, was justified in law. Accused also contended that there is no evidence that he was drunk, he did not insult the peace officers, with the words contained in the charge sheet, but he only said those words jocularly to his friends, and lastly that the disturbance was created not by himself but by his unlawful arrest by the officers.

With regard to the first count, it is true that the only evidence of drunkenness is that of P.W.1, who [*1242] said that he saw accused coming towards him walking in a zig-zag manner. No further evidence was adduced as to whether accused was examined by a doctor, or he was submitted to any other test to verify his drunkenness either by putting him to walk on a straight line or smelling his breath. There is no evidence also that accused was behaving like a drunkard or that he was stammering. Accused admitted that, because of the drink he had consumed, he was in a merry state, but there is a lot of difference between being in a merry mood and being drunk. I would therefore acquit accused on count 1.

Regarding the rest of the counts, the whole case rests on the true circumstances surrounding the incident which gave rise to the present proceedings.

From the two versions I prefer the version put forward by the witnesses for the prosecution. The evidence of the witnesses for the prosecution agree in every material particular and they were not shaken by the cross examination even in any trivial part of their testimony. On the other hand, the evidence of accused was not true and his main allegations reached the point of being ridiculous. He admitted having said the words" " ........", but he said them jocularly to his friends. But why accused should have said these words to his friends? They gave him no reason. He was addressing them to the peace officers who were advising him to go home and stop shouting. He repeated these words a number of times, and yet there is no evidence that anybody of his friends was amused from the "joke". [1243] Another interesting thing about this part of the incident is that, counsel for accused put to the witnesses for the

prosecution, that accused did not say those words but "αγαπώ σας ούλλους" He did not put to them that accused said "........" but he was addressing them to his

friends. Accused, however, in his evidence admitted saying the words. He, also alleged that when he was dragged to the car he

told the peace officers. "Εγώ αγαπώ σας ούλλους, εσείς γιατί με πιάνετε"; Accused

in fact was reluctant to put forward that allegation and it came from him after a leading question was put to him by his advocate. I would therefore find accused guilty on counts 5 to 7, both inclusive.

I turn now to the counts charging accused with assault. Having accepted the evidence of the witnesses for the prosecution as true and rejected that of accused, it follows that accused assaulted P.W.1 and P.W. 4. in the due execution of their duty, the duty being (a) their endeavour to keep the peace by suppressing the disturbance accused was creating and (b) the arrest of accused after he had committed offences punishable with imprisonment (see section 14(b) of Cap. 155).

With regard to P.W.2 Georghios Nicolettis, whose assault is charged on count 3 different observations apply, P.W.2, admitted that in the afternoon he was eating and drinking with the company of accused at Meneou village. He was on leave but he was wearing his police uniform. Later he came with the same persons in Larnaca at about 1 a.m. [*1244] He did not go with them in the bar, as he was in police clothes, hut he awaited for them to finish their drink and then joined them outside the bar. When accused behaved to P.W.1, as P.W, 1 described, he advised accused to go home, who however, pushed him aside. P.W.1 said that his advice to accused was a friendly advice and did not intend to use his

official authority. In the circumstances, I am of the opinion that P.W.1 was not acting at the time in the due execution of his duties and

I therefore acquit accused on count 3. Acting, however, on the authority of George Wilson (supra) and on our Criminal Procedure Law, I find accused guilty for common assault. In the circumstances accused is found guilty of common assault, instead of an assault on P.W.1 in the due execution of his duty and he is also found guilty on counts 2 and 4.

From the evidence adduced, there is no doubt whatsoever that quite a disturbance was created and some thirty people gathered round the scene and naturally a breach of the peace was caused. This breach of the peace was created solely by the behaviour of accused, which was with no excuse whatsoever. Accused is therefore found guilty on count 8.

Accused found guilty on

counts 2-8.