Criminal appeal dismissed; conviction for stealing by agent sustained despite accused's denial of knowledge.

[*1] 1973 Oct. 11

(HADJI ANASTASSIOU, A. LOIZOU, AND MALACHTOS, JJ. )

APPELLATE JURISDICTION

Georghios Efthymiades,

Appellant,

v.

Police,

Respondents.

(Criminal Appeal No. 3482).

Criminal Law - Stealing - Stealing by agent - Section 270(b) of the Criminal Code, Cap.

154 - Conviction -Sentence of £30 - Sustained.

Appellant appeared in person.

N. Charalambous, for Respondents.

JUDGEMENT

The judgment of the Court was delivered by:--

HADJIANASTASSIOU, J.; The appellant was convicted by a Judge of the District Court of Nicosia of the offence of stealing the sum of £12,- and an empty tin valued at £0.325 mils the property of Michael Solomou Simadiakos of Pano Zodhia contrary to section 270(b) of the Criminal Code Law Cap. 154 and was sentenced to pay a fine of £30.- plus £12.325 mils for compensation, and £9.150 mils costs. He now appeals against his conviction and the sentence passed upon him.

The facts are these: According to P.W.1 Michael Solomou Simadiakos of Pano Zodhia, who knew a certain Polyvios Christofi Krashias of Plassou for a number of years, on one[*2]day in August, 1972, brought to him a tin full of oil of thirteen and a half oaks in order to sell it and to pay the price to him. The oil finally was sold for the sum of £12.-. Indeed the witness said that he knew the accused because he was going to Pano Zodhia and was selling oil. They met in the cafe of the church and the accused asked him whether he wanted to “buy oil. The witness asked him from which village he was coming and his reply was from Flassou and that his name was Georghios Efthymiades and that he had a. cinema in Flassou. Then the witness asked him whether it was convenient for him to take to him a tin and £12.- and the witness accepted to do so. Finally, in the presence of a certain Christakis Mitsingas the witness gave him the sum of £12 and a tin to take it to Mr. Polyvios Krashias. After a period of 8 -10 days the said Polyvios called to see him in order to give him the money and he explained to him that the said money together with a tin was given to Georghios Efthymiades who has a cinema. Later on he went to Flassou and inquired about that person, but he could not trace him. On 15th January, 1973, whilst he was going to the Police of Morphou to report the case he met the accused in the office of a certain Thrasyvoulou and asked him why he did not hand the money to Mr. Polyvios and his reply was that he could not remember whether he gave him money and finally added “let me look into a note-book which I have to see whether I have made a note of it”. After that he left him and he went to the Police and reported the matter.[*3]

According to witness Christakis Polycarpou Mitsingas a mechanic, he told the Court that he knew the accused for a period of about two years and that his nickname was Fonias. He further added that one day in December, 1972, whilst he was in the shop of the previous witness, he saw him there. He saw the previous witness handing over to him the sum of £12.- and told him “here you see these £12.- and certain shillings and take them with this tin to the old Krashias”. Then the witness added that he saw the accused taking the £12.- from the previous witness and when the accused left the said witness served him with the meat. He further added that the time was 2.30 p.m. and that the day was Saturday.

Questioned further, he said that he was not related with the previous witness and that on 14th January, 1973, on a Sunday, he accompanied the previous witness to Flassou together with others in order to trace the accused person. Finally, he added that they could not trace him and they returned home.

The next witness, Polyvios Christofi Krashias said that he knew Michael Solomou Simadiakos of Pano zodhia for a number of years. He further told the Court that he gave a tin of oil containing 13½ okes to the first witness in the middle of November, 1972, with instructions to sell it for 18 shillings per oke. He sold it, hut until today, the witness added, he was not paid. He further said that he knew the accused who is known with the nickname Fonias, and that his home was not near his house. He never gave him the money for the oil* and that the value of the tin was £0.325 mils.[*4]

There was further evidence by P.W.4 Yiannis G. Frangoulides of Pano zodhia who said that he knew the accused for a period of over 10 years and on the Saturday of 16th December, 1972, he met him at Pano Zodhia where he was selling oil. He further said that he met the accused in the morning in the cafe of the co-operative between 6.00 and 6.30 a.m. and he informed him that he brought oil to sell and brought to him a tin of oil containing three bottles as a gift and that the said oil was in the cafe of the church. Indeed, they went together and the accused gave him the tin and he saw also that there were two tins of oil in the cafe. During the afternoon at 5.00 p.m. he met the accused at the cafe of the church and the latter told him “if someone will ask you whether you know me tell him you do not know me”. Then, he asked the accused: “Is it yiasakki?”, “is it prohibited to sell oil?”, and his reply was yes.

The accused gave evidence on oath and said that on the 16th December, 1972, he went to the cafe of the church of Pano Zodhia in order to sell oil. In the said cafe at about 6.00 and 6.30 p.m. there were two unknown persons who were selling, the first one zivania and wine and the other one nuts. Nobody talked to him because they were unknown to him and when one of his clients came into the cafe he sold him two tins of oil which they took to a certain shop. Later on, he was approached by P.W.4 and asked him whether he knew P.W.I. His reply was that he did not know him, but P.W.4 told him that P.W.1 was insisting that he gave him £12.- and one tin. His reply was “since he was [*5]unknown to me how did he give me £12.- and a tin”. Finally, P.W.4 told ;him that P.W.1 is a friend of theirs and that 'P.W. 1 is the person who bought three tins of oil from him. Then the accused made this statement to P.W.4 : “Mr. Karaolis, you who was helping me, have you seen anybody to give me or has come to tell us anything?”. Then P.W.4 replied: “No, I never saw anybody to give you £12. - nor a tin. Finally, the accused added, P.W.1 and he did not approach each other and they did not exchange any other word. Then the accused added “No, I now say that we exchanged a few words when he asked me, Don't you admit that I gave you money?”. His reply was “As I do not know you how did you give me money”.

In support of the statement he made the accused called his wife Maria Georghiou who told the Court that Polyvios Krashias is a co-villager and their neighbour. She also added that the Police came looking for the accused who was absent from horns and informed her about the present case.

The trial Judge having considered the evidence for the prosecution and that of the accused, reached the conclusion that the witnesses for the prosecution put before him the real facts of the case. On the contrary, the trial Judge said that the behaviour of the accused was such that he was convinced that the accused unreasonably was lying and denied his guilt and was putting forward that it was impossible to be identified by P.W.1 once he was unknown to him. In addition, the learned Judge relied on the well known case of Costas Michael Platritis v. The Police (1967)[*6]2 C.L.R.174. Finally, the 1 earned trial Judge having regard to everything put before him, found the accused guilty but he decided to give him a last chance and imposed upon him a fine of £30.- plus the costs.

On appeal, the appellant in addressing the Court, insisted that he was innocent and that he was the victim of false evidence. We have considered very carefully what has been said by the appellant and with regard to the facts and circumstances of this case, and particularly because the learned trial Judge disbelieved his evidence and had imposed a very lenient sentence indeed, we are not prepared to interfere with the sentence imposed upon him.

Appeal dismissed.