Court allows police statements from search as admissible because they constituted the beginning of evidence requiring Rule 3 caution.

[*108] 1975 November 7

(ARTSMIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Nicosia Police,

v.

Panayiotis Papadopoullos and Others,

Accused.

(Case No. 12041/75).

Evidence - Confessions and Statements by accused to Police - Admissibility - Law applicable - Caution - Judges’ Rules - Search of accused’s house on strength of Judicial warrant - Caution to be administered before search - Whether the one envisaged by rule 2 or the one envisaged by rule 3 of the Judges’ Rules.

Gl. Michaelides, for the Prosecution.

A. Angelides, for accused 1.

G. Michaelides, for accused 2.

A. Panayiotou, for accused 3.

L. Clerides, for accused 4.

A. Magos, for accused 5, 6 and 7.

RULING

The following ruling was delivered by: -

ARTEMIDES. D.J.: Learned counsel for accused 3 [*109] raised objection to the admissibility of four statements made by the above accused to Acting P.S. A. Theodotou, P.W.41 (S.T.P.W.1), or in his presence to other police constables. The four statements are contained in answers given by the accused to equal in number questions put to him during the carrying out of a serach in his house. In view of the fact that all the statements were made during the search and forms part and parcel of the same transaction in the same circumstances, I directed that one trial within the main trial be held to decide the objection raised, the witness proceeding to give his evidence up to the point of the completion of the search in the house of accused and jumping over the objected answers.

The only ground of the objection is that accused was not cautioned properly before replying to the questions put to him, in that the caution envisaged by Rule 3 should have been used, whilst Theodotou used the caution envisaged by Rule 2 of the Judges Rules.

The surrounding circumstances giving rise to the objection are not in dispute and may be summarised as follows:- On the 15.1.1975 Ag. P.S. Theodotou with two other police constables acting on the strength of a judicial warrant for search visited the house of accused 3. As it is usual in cases similar to the one in hand, the police were also in possession of a judicial warrant for the arrest of accused 3, apparently to be executed if the search revealed any material connecting the accused with the commission of an offence. [*110]

When the door of the house was opened for the police, Ag. P.S. Theodotou showed to accused the search warrant, explained to him the purpose of the search to be carried out and cautioned him. It is common ground that the caution used is the one envisaged by Rule 2 of the Judges rules. The search commenced and the first thing to which the police came across was a big trunk (Exhibit 44 in the main trial) which bore on it the writing ###. The accused was then asked about this trunk and gave the objected answer. In the same manner accused was asked about a coat, two suits and two jackets and gave the other three objected answers. When the search was completed the accused was arrested and was escorted to Ayios Dhometios police station together with the things found in his premises.

Learned counsel for accused submitted that when the trunk was found with the aforementioned writing on it, the police at that stage had acquired enough evidence upon which to charge the accused with the offences for which up to that moment he was suspected to have committed. The police had gone to the house of accused with an information and a search warrant in which it was specified that the suspected offence was the unlawful possession of clothing owned by the Service for the Care and Rehabilitation of Displaced Persons and the writing on the trunk gave to the police enough evidence to turn their suspicion into concrete evidence upon which a charge could be laid. The other clothing for which accused was asked was manufactured in [*111] Greece, the country from which the bulk of the aid has been forwarded to Cyprus for the S.C.R.D.P., a fact which led the police specifically to ask the accused about those pieces.

Mr. Gl. Michaelides, for the prosecution, has argued that accused was rightly cautioned before, the search in view of the fact that until then the police were acting on mere information. No fresh caution was needed during the search in view of the first caution administered, which operated in the mind of accused during the whole transaction of the search. The correct caution was also used because and even after the finding of the clothing, the police did not have enough evidence upon which to charge the accused but were at the beginning of the evidence in building their case.

The answers objected to, from what I gather at this stage of the proceedings, do not amount to confession, but it seems that if they are admitted they will have adverse effect on the line of defence. For this reason I have dealt with the objections raised with the same seriousness as if the objected answers amounted to a confession.

The law with regard to the admissibility of a statement-confession in evidence is well settled and a great number of authorities have been decided on the subject. I do not intend to expand in detail regarding the law on the matter, all the more so because the voluntariness of the Statements is not disputed, but I will only say a few words thus being respectful to both learned counsel for accused [*112] and the prosecution, who went into some labour in presenting their respective cases.

The onus to prove that a confession is a voluntary one lies with the prosecution, who has to satisfy the Court beyond reasonable doubt as to the voluntariness of the confession. Any doubt as to the voluntariness of the confession will render it inadmissible. This principle well embedded in our law has been repeated time and again. Regina v. Sfongaras (1957) 22 C.L.R. 113.

The Courts have always shown extreme vigilance in examining the circumstances under which a confession is taken and they will exclude it from evidence if it has been given in circumstances giving rise to suspicion. Ioannides v. The Republic (1968) 11 J.S.C. 1321.

The admission or rejection of a statement is always a matter resting with judicial discretion which is exercised according to the interests of justice. The Court may reject a confession which has been proved to be a voluntary one, if it was taken under unfair or oppressive circumstances amounting to an abuse of powers by persons in authority. On the other hand the Courts may admit in evidence a confession not taken in strict compliance with the Judges' Rules if it is a free and a voluntary one in the true sense of the words. See Kokkinos v. The Police

(1967) 2 C.L.R. 217, Michael Antoni Petris v. The Police (1968) 2 C.L.R. 40, R. v. Andreas Phaedonos and Others, 22 C.L.R. 21. [*113]

A great number of authorities may be cited but no useful purpose will be served by merely enumerating them: this short ruling, however, will be incomplete if no mention is made of a very recent case in the House of Lords, in which a review of the authorities in the matter was made and the dicta of Lord Sumner in Ibrahim v. R. (1914-15) All E.R. Rep. 877 were adopted. This is D.P.P. v. Ping Lin( 1975)3 All E.R. 175.

I now proceed to examine the issue in hand which turns on the question whether during the search the police had acquired enough evidence upon which to charge the accused or started gathering evidence which would form the beginning of a prosecution. Fortunately the matter is not devoid of authority. In R. v. Osborne R v. Virtue (1973) 1 All E.R. p. 649 Lawton L.J. in delivering the Judgment of the Court of Appeal, Criminal Division, had this to say:

"The rules contemplate three stages in the investigations leading up to somebody being brought before a court for a criminal offence. The first is the gathering of information, and that can be gathered from anybody, including persons in custody provided they have not been charged. At the gathering of information stage no caution of any kind need be administered. The final stage, the one contemplated by Rule 3 of the Judges Rules, is when the police officer has got enough (and I stress the word ’enough') evidence to prefer a charge. That is clear from [*114] the introduction to the Judges' Rules which sets out the principle. But a police officer when carrying out an investigation meets a stage in between the mere gathering of information and the getting of enough evidence to prefer the charge. He reaches a stage where he has got the beginnings of evidence. It is at that stage that he must caution. In the Judgment of this Court, he is not bound to caution until he has got some information which he can put before the Court as the beginnings of a case".

The case of Osborne and Virtue was cited with approval by Lord Widgery C.J. in the case of Walmsley v. Young Criminal Law Review September, 1974 p. 548.

I have examined the facts of the present case with great care and I have come to the

conclusion that the caution administered to the accused was the proper one. Although the caution was administered before the commencement of the search, yet it operated in the mind of accused during the whole time the search was being carried out because he was shown the search warrant and was told of the reasons for the search. He knew therefore very well that the police were looking for property allegedly unlawfully kept in his premises and the caution administered to him put him on his guard, if he minded to give any replies to questions or explanations about the things found in his house. Furthermore, there is very little difference between the wording of the caution in rule 2 and rule 3. [*115] The difference between the two rules in fact lies in the way the statements are taken, hut in the case in hand the statements were oral.

The finding of the trunk as well as the other clothing do not constitute "enough" evidence, as the word has been given legal interpretation in the cases of Osborne and Virtue and Walmsley v. Young, cited above, but it constituted the beginning of evidence which turned the reasonable grounds of suspicion for the commission of the offence into evidence which would afford reasonable grounds to suspect its commission.

Having taken into consideration all the above, I have decided to rule that the objected statements are admissible in evidence.

Order accordingly.