Court acquits accused of assaulting police for resisting an unlawful, non-consensual search of his person.

[*373] 1977 January. 18

(ARTEMIS, D.J. )

IN THE DISTRICT COURT OF LÁRNACA

Police

v.

Marios Joseph Frangos,

Accused.

(Criminal Case No. 9694/76).

Criminal Law - Assaulting policeman while in the due execution of his duty - Section 244 (b) of the Criminal Code, Cap. 154 - Policeman carrying out search on the person of the accused without his consent - By doing so he was acting in excess of his duty and unlawfully - Right of accused to resist such search by use of force if necessary - Accused acquitted.

Search - Policemen - Whether they have a right to search a person without his consent.

Criminal Law - Disturbance - Section 95 of the Criminal Code, Cap. 154 - Disturbance caused by accused’s conduct to resist an unlawful search of his person - Reasonable cause for creating the disturbance - Accused acquitted.

Criminal Law - Insult - Section 99 of the Criminal Code Cap. 154 - Accused uttering insults in the course of resisting an unlawful search of his person - Unconditionally discharged.

Police Constable Koulendis , for the Prosecution.

G. Georghiou, for the Accused.

JUDGMENT

The following judgment was delivered by:-

ARTEMIS, D.J,: In the night of 14.11 .76 [*374] and some time before midnight an incident occured near and around a public road at Larnaca in which five police constables and the accused were involved, as a result of which the latter was prosecuted for:-

(a) Assaultirg Ag.P.S. D.Christofides while in the due execution of his duty (s. 244(b) of Cap. 154);

(b) Insulting the five aforesaid police officers (s.99 of Cap. 154);and

(c) Disturbance (s. 95 of Cap. 154).

The version of the prosecution as it emerged from the evidence of the witnesses called, all of whom were police constables, is that at the material time the complainants were in a police car on patrol in the town when they noticed the car of the accused at about 11.45 p.m. parked outside Yotes’ Restaurant" on Gr. Dhigenis Avenue. For reasons to which I shall refer later in this judgment, the patrol decided to await for the accused and carry out a search of his car. They waited for him and when he entered into his car they stopped him and the Ag. Sergeant (P.W.1) alighting from his car informed the accused of their intention. With the exception of one witness, it is the story of the prosecution that accused consented only after some protest to the proposed search of his car. He alighted and stood on the pavement while P.W.1 entered the car to search it. The accused was told by another policeman to approach the car as he ought to have been in a position to witness the search but he insistently refused. In view of this P.W.1 alighted again and the accused was informed that a search of his person was now proposed. To this course he apparently [*375] protested and with his hands in his pockets he tried to prevent such search. Force ms then applied on the accused to make such search possible to which accused offered resistance and at one time he raised his hand and with the back of his palm he slapped the police Sergeant on the right cheek. During this incident the accused fell on the ground, but the search was finally effected. After this all prosecution witnesses with the exception of P.W.5, P.C. Aristidou who places this act at a later stage, testified that accused opened the boot of his car to be searched.

Having done so, the accused ran away and entered the yard of the adjoining house of a certain Mr. Nicos Makrides. Two policemen approached the yard calling him to return. At this juncture the accused, addressing himself to all five constables uttered the insults referred to in counts 2 to 6 inclusive. Finally Mr. Nicos Makrides and others who emerged from his house calmed the accused down who returned to the scene. It was at this stage that P.W.5 fixes the time of the search of his boot, something that tallies with accused's evidence. Finally, the accused consented to go to the police station, when he was required to do so, for the taking of his particulars even though it is an admitted fact that he was well known to the policemen. From the station he was soon allowed to depart.

The version of the accused is that he consented at once to his car being searched, be it with some indignation. He alleged that when he refused to approach the car he was violently pushed onto the vehicle by a policeman and was eventually searched with his consent. When asked to go to [*376] the station for his particulars, he enquired why this was deemed necessary as he was known to the policemen. After some altecrations he was assaulted by the policemen, thrown to the ground and for 10 minutes he was beaten up. He finally managed to escape and ran into Makrides' yard. With the mediation of Mr Makrides he was persuaded to go out again and open the boot of his car, and finally consented to go to the police station. Next morning he gave the matter to the newspapers and lodged a formal complaint with the Police. He was finally medically examined by a Government Medical Officer. It is his allegation that he never slapped P.W.1 nor insulted the policemen, and he considers his prosecution as a cover up for the illegal conduct of the police.

In examining the evidence of the prosecution I have done so with much care as the fact that it consisted only of the evidence of policemen makes it possible that their zeal to detect crime and carry out their duty may have coloured their testimony. There are indeed some contradictions in their evidence: For example, the evidence as to when the boot was searched; it is also strange why they did not arrest accused after his alleged conduct but merely requested him to follow them to the station, wherefrom they released him without preferring any charges.

On the other hand there are many weak points in the evidence of the accused. While in cross-examination it was suggested to some prosecution witnesses that accused slapped P.W.1 only after the latter had hit him accused himself denied that he hit P.W.1 at all. It is also

difficult to believe that all 5 policemen, for the full extent of 10 [*377] minutes, in a public street and where persons were

present in the restaurant nearby, beat up the accused for no good reason at all as he alleges. In addition, such violence would have left its marks on the accused, but even so no medical evidence was called to support this point at a time when it should have been available. As regards the insults, even though accused denied them, In cross-examination, beyond an allegation to the prosecution witnesses that they were lying generally, it was not put to them that they were not actually insulted.

I have given very careful consideration to the evidence and I find that the truth lies somewhere between the 2 versions: I find that accused consented to the search of his car and that when he refused to be near it, he was pushed. He then resisted to the search of his person and then considerable force was exherted upon him to make him submit. During this he hit P.W. 1 but he was finally thrown to the ground and eventually searched. He then ran into the yard wherefrom in a state of indignation he uttered the insults alleged. Finally he calmed down, opened his boot and followed the police to the station.

The fact that he was not arrested or charged at once may be explained by the fact that the policemen themselves might have believed that their actions might have been unlawful; but after the publicity given to the incident they decided to prefer charges.

On these findings I shall now proceed to examine whether the charges have been substantiated. And firstly I would like to comment on the ground put forward for the [*378] suspicion entertained by the police. To say the least, such ground is very strange. In what way the presence of the accused in a restaurant belonging to a third person when he himself was the owner of a cafeteria affords a ground for suspecting him of carrying firearms unlawfully, I cannot imagine, and I reject such allegation as unfounded, on the evidence I have before me. It is now relevant to examine whether the police were acting in the due execution of their duty, as this bears directly on the first count and in general on the conduct of the accused.

As I have found that accused consented to the search of his car, I shall proceed to examine whether the search of his person was lawful and justified.

Generally, there is no right at Common Law to search a person without his consent, except after he has been lawfully arrested. If such a search is carried out, it constitutes a trespass to the person (see Coward v. Baddeley (1859) 4 Η. & N.478). Further, there is no power at Common Law to search a person on suspicion, or a fortiori, out of curiosity (see Search and Seizure of Chattels, article by D.J. Stephens, (1970) Crim. I.R. 74, at p. 76).

It is consequently clear that by carrying

out a search on the person of the accused without his consent the policemen were acting in excess of their duty and unlawfully. (As

to powers of the police see Castelow and Another v. The Police (1970) 2 C.L.R. 141; Rice v. Connolly (1969) 2 Q.B. Donnelly v. Jackman (1970) 1

All E.R. 897 (D.C.)). [*379]

It is therefore obvious that accused had every right to resist such search, by using force if necessary, as force had actually been applied on him. The force used by the accused in this case was justified.

In the light of the aforesaid I find that the first count has not been proved. As regards the count for disturbance, the disturbance was obviously caused by accused’s conduct to resist such search and by the expression of his justified indignation. There was, therefore, reasonable cause for creating the disturbance and he should be acquitted on this count as well.

Accused, in expressing his indignation, went so far as to utter insults which technically makes him guilty of public insult. Even though he should have been charged for the insults in one count as his conduct consisted of utterances directed at one time against all complainants, I shall convict him on the separate counts, but, if any sentence is imposed, it will be imposed on one of the 5 counts only.

In the result the accused is found guilty on counts

2 to 5 and he is acquitted and discharged on counts 1 and 7. Prosecution: Accused is a first offender. I have £2.660 mils costs.

Georghiou: Accused’s insults were the result of his justified indignation.

COURT: Bearing in mind how the accused was led to uttering the insults, I consider it would be unjust to impose any sentence on him. The accused is unconditionally discharged. Costs to be paid by the Republic.

Accused acquitted and discharged on Counts 1 and 7.

Discharged unconditionally on on counts 2-5.