[*351] 1986 February 3
(MILTIADOU, D.J.)
IN THE DISTRICT COURT OF PAPHOS
Divisional Police Commander Paphos,
v.
1. Savvas Agrotis
Accused.
Words and phrases - "Antiquity" in section 2 of the Antiquities Law, Cap. 31.
Antiquities - The offence established by section 4(1) of the Antiquities Law, Cap. 31 - Its necessary prerequisites - The ambit of its proviso - The offence established by section 10(l)(a) of the same law - Its necessary prerequisites.
P.S. Loizides, for the Prosecution.
A. Myrianthis, for the Accused.
RULING
The following ruling was delivered by:
MILTIADOU, D.J.: All the accused are charged that on
the 1.6.1985 at Kouklia village, locality "Viclin" did -
(a) Accidentally discover antiquities without being in possession of licence to excavate and failed to inform the appropriate authorities of the Republic, contrary to section 4 of the Antiquities Law, Cap. 31. [*352]
(b) Destroy antiquities i.e. two cannons, drawn from the sea, contrary to section 10(l)(a) of the Antiquities Law, Cap. 31.
To prove the above two charges the Prosecution called three witnesses in all, namely -
P.W.l, Nicos A. Yiallouros, of Kouklia, who, inter alia, said that, he is the owner of a field at the locality "Viclin" of Kouklia village, which is situated near to the foreshore.
On the 1.6.85 and at about 16.00 hours as he was going to his above-mentioned field, to irrigate it, he came across, by the said foreshore, of accused 1 and 2, who with the use of an excavator and some ropes fastened on it were trying to draw something from the sea, and, when he approached, he asked them what they were doing, and their reply was that they were drawing a cannon from the sea. He continued his way to his field and on his return back, after about 10 minutes, he noticed, a cannon on the foreshore and the third accused to be inside the sea, holding the one end of the rope and diving into it at a distance of about 100 metres from the shore. He thereafter returned back to Kouklia village, where he reported the matter to P.C. 3815 P. Savva and with whom, he returned back again to the area where the accused were. [*353]
On arriving there, they noticed that the accused were still trying to pull out of the sea something and which when it was drawn from it, it was a second cannon.
The said two cannons were, soon after, loaded with his and the accused's help into the pick-up of the first accused and were transported to Kouklia Police Station.
The witness in his cross-examination by the learned counsel of the accused said that, the first accused is the owner of an acquarium, at the said locality and the excavator which was used to draw the said cannons from the sea is that which is used by the first accused for the needs of his above acquarium.
When he returned, together with P.C. 3815 P. Savva, to the area, again, the accused were still in the process of pulling the second cannon, out of the sea, but said police constable in no way forbade or stopped the accused to do so. The said two cannons were very heavy and to remove them from the ground it needed at least five persons.
P.W.3 - P.C. 3815 Polydoros Savva, who said that, he is stationed at Kouklia Police Station. On the 1.6.85 upon an information by the previous witnesses, he visited with him the locality "Viclin" of Kouklia village. On their arrival to the area he noticed all the accused trying with the use of an excavator some ropes fastened on it to draw something from the sea. [*354]
When he approached them, he asked accused 1, what they were doing, and, his reply was, that, they have drawn from the sea a cannon, which was lying on the foreshore and, that, they were trying to draw there from another one. He then asked him whether he had a licence to do so but his answer was that they had the advice of a lawyer who advised them that there was nothing to worry about.
He, soon after, informed all the accused that he was about to report them that they have drawn antiquities from the sea; accused 1 and 3 replied that they were advised by their lawyer that there was nothing to worry about, while accused 2 said nothing.
When the second cannon was drawn out from the sea by the accused, he communicated through the wireless set of the Police Land Rover with the officer in charge at Paphos Central Police Station and on his instruction he confiscated the said two cannons which were loaded into the pick-up of the first accused and were transported to Kouklia Police Station and were kept as exhibits.
On the 3.6.85, Demetrios Michaelides of the Department of Antiquities visited Kouklia Police Station where he examined those two cannons.
The witness in his cross-examination by the learned counsel of the accused said that he went to the locality with the previous witness, remained [*355] there with him, till the said two cannons were loaded on the vehicle of the first accused and were transported to Kouklia Police Station.
On their arrival to the area the accused were still in the process of pulling the second cannon out of the sea, but he didn't forbid or stop the accused to do so.
The accused didn't refuse to deliver the said two cannons to him and that the first accused told him that their intention was after drawing them from the sea to transport them to his acquarium, and to inform about it the Paphos Museum.
P.W.3, Demetris Const. Michaelides who, inter alia, stated that he is the District Archaeological Officer of the Paphos Museum. He is an Archaeologist and Doctor of Archaeology of London University. He is a specialist on matters concerning archaeology.
On the 1.6.85 and about 18.35 hours, while home, he had a telephone conversation with a certain Onisiforos Loucaides, in charge of Kouklia Museum, as well as with the first accused, who said that he drew from the sea two cannons and that the said cannons have been transported to Kouklia Police Station.
On the 3.6.85 he visited Kouklia Police Station where he examined those two cannons on the spot. The said two cannons were manufactured from a mixture of copper and of some other metals, during the end of the 16th Century A.D. the period of the Renaissance. [*356]
The one of them bears a coat of arms and an inscription in Latins reading as follows "Opus Federici Mussarra 1559" which translated in English means "Work of the Federici Mussarra 1559". This cannon was made in the Arsenale of Venice.
On the other cannon there is too an inscription but it was rendered illegible due to the existing coat of pertification on it. This cannon was manufactured during the same period as the above and is of the same type with the first and both were used for the equipment of the war ships of Venice, they are of great historical value and the only and first which are discovered in Cyprus.
None of those two cannons was damaged despite the fact that some force was used to remove them from the bottom of the sea, where they were stuck.
The witness in his cross-examination by the counsel of the accused said that the 1.6.85 was Saturday, and that even if the inscription on the other cannon was illegible too, he could with certainty say that they were made in Venice during the period of Renaissance, from their type and the mixture of their metal.
At the close of the case for the prosecution the learned counsel of the accused submitted that a prima facie case has not been made out against [*357] the accused sufficiently to require them to make their defence and asked the Court to acquit them on the grounds -
(A) As regards the first count, that -
(a) The said two cannons are not an antiquity within the definition of the law.
(b) There is no evidence that the accused failed to give notice of their discovery to the appropriate authority.
(B) As regards the second count, that -
(a) The relevant section provides only for ancient monuments and not antiquities.
(b) There is no evidence that the said cannons were destroyed by the accused.
The Prosecution on the other hand, alleged that a prima facie case has been made out against all the accused, sufficiently to require the accused to make their defence so as to justify the Court to call upon the accused for their defence.
The above submissions are based on section 74(l)(b) and (c) of the Criminal Procedure Law, Cap. 155 which reads as follows:-
"(b) At the close of the case for the prosecution, the accused, or, his advocate may submit that a prima facie case has not been made out against the accused sufficiently to require [*358] him to make a defence, if the Court sustains the submission it shall acquit the accused.
(c)At the close of the case of the prosecution, if it appears to the Court that a prima facie case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him for his defence .....".
The question whether a prima facie case has been made out against the accused has been made the subject of judicial consideration in a considerable number of Cyprus and English authorities but the principles governing the position when a person is being called upon to make his defence pursuant to the provisions of section 74(l)(c) of the Criminal Procedure Law, Cap. 155, were recently considered and expounded at length in the case of Andreas Azinas and Another v. The Police, (1981) 2 C.L.R. p.9,at pages 51-57 inclusive and I feel no need of repeating them here in my judgment. However, guided by those principles, I will now proceed to consider the relevant submissions made on behalf of the defence and the prosecution.
The accused are charged, as I mentioned hereinabove, under sections 4 and 10 of the Antiquities Law Cap. 31. The said sections provide:
Section 4(1) - "Any person who accidentally discovers an antiquity whether in or upon his own land or land the property of another person or of the [*359] Government without being in possession of a licence to excavate in accordance with section 14 of this Law snail forthwith give notice of his discovery and if portable deliver the antiquity, to the mukhtar of the nearest village or to such other person as District Officer of the District may appoint in that behalf or to the Curator of the Cyprus or a Local Museum and shall at the same time sufficiently indicate or describe the place where he found it.
Provided that the removal of the antiquity from the place of discovery for transportation and delivery to the appropriate authorities shall not entail any illegal act of excavation if the removal was carried out without any further excavation and without any damage to the antiquity and such antiquity was delivered to the appropriate authorities intact as discovered.
Provided further that the Minister shall have power, whenever the circumstances so justify, to grant to the finder of the anti- quity a licence to possess the same under such conditions as the Minister may specify in the relevant licence."
Section 10(l)(a) - "Any person whether beneficially interested in it or not who -
(a) destroyes, injures or defaces an ancient monument or antiquity [*360]
(b)…………………………………...
shall be guilty of an offence and shall be liable to imprisonment not exceeding one year or to a fine not exceeding three hundred pounds or to both".
It is clear from section 4(1) above, that an accused to be convicted under it, the prosecution has to prove that:
(a) The accused acted without being in possession of a licence,
(b) The object accidentally discovered is an antiquity, and
(c) Upon discovery the accused failed forthwith to give notice of his discovery to the appropriate authority.
As regards (a) above, there is no dispute, and it is clear from the evidence before me that the accused were not the holders of such a licence.
As regards (b) above, however, what is an antiquity is defined by section 2 of the Antiquities Law, Cap. 31 which reads as follows:
"'Antiquity' means any object, whether movable or part of immovable property which is a work of architecture, sculpture, graphic art, painting and any art whatsoever, produced, sculptured, inscribed or painted by human [*361] agency, or generally made in Cyprus earlier than the year A.D. 1850 in any manner and from any material or excavated or drawn from the sea within the territorial waters of Cyprus and includes any such object or part thereof which has at a later state been added, reconstructed, readjusted or restored:
Provided that in the case of such works of ecclesiastical or folk art of the highest archaelogical, artistic or historic importance, the year A.D. 1900 shall be taken into account in place of the year A.D. 1850."
It is clear from the above definition that two categories of objects, whether movable or part of immovable property, fall into it -
(a) Any object which is a work of architecture, sculpture, graphic art, painting and any art whatsoever, produced, sculptured, inscribed or painted by human agency, and
(b) Any object which is generally made in Cyprus earlier than the year A.D. 1850 in any manner and from any material or excavated or drawn from the sea within the territorial waters of Cyprus and includes any such object or part thereof which has at a later date been added, reconstructed, readjusted or restored. [*362]
In my judgment, those two cannons fall into the first category as objects which are a work of any art whatsoever produced by human agency and, therefore, are an antiquity.
Finally, as regards (c) above, from the evidence before me there is no doubt that the accused upon discovery of the said cannons failed to give notice of their discovery and went on with the removal of the same from the place of discovery.
In consequence the argument of the defence counsel regarding count 1 fails and is not sustained. However, save the above, such renoval, according to the proviso of the above section, shall not be an illegal act, if -
(a) Such removal of the antiquity from the place of discovery is done for transportation and delivery to the appropriate authorities;
(b) Such removal was carried out without any further excavation;
(c) No damage is caused to the antiquity so removed, and
(d) Such antiquity is delivered to the appropriate authorities intact as discovered.
From the evidence adduced by the prosecution, I find that all the above requirements of the said proviso are fully complied with by all the accused. It is down in evidence, that the accused 1 stated [*363] that after the removal of the said cannons it was their intention to inform and deliver same to the local Museum, that no further excavation followed the removal of the said two cannons, that no damage was caused to those two cannons and that the said cannons without any objection and with the assistance of the accused were loaded and transported on the car of the first accused to Kouklia Police Station.
In the result, I find that the removal of those two cannons from the place of discovery is not an illegal act of excavation and it is outside the ambit of section 4(1) of the Antiquities Law, Cap. 31.
Turning now to count 2 it is obvious from the wording of section 10(l)(a) above, in order the accused to be found guilty under it, the prosecution ought to have established that -
(a) They have destroyed antiquities, and
(b) The things destroyed are antiquities.
As regards (a), it is in evidence and particularly in the testimony of the P.W.3 Demetrios Const. Michaelides, an expert Archaeologist, that those two cannons suffered no damage at all, but what they need from now on is special maintenance to keep them in good condition. Regarding (b) above the Court has already made its decision and found that those cannons are antiquities as defined by section 2 of the Antiquities Law, Cap. 31. [*364]
What now remains for consideration by the Court, is the first limp of the submission of the counsel for the defence in respect of Count 2, i.e. that, because, section 10(1)(a) provides for the destruction only of ancient monuments and not antiquities and the accused are charged under the said section that they did destroy antiquities, therefore, they cannot be convicted under that section.
With all due respect, it seems, that the learned counsel ignores or has not in mind Law 48/64 under which section 10 of the Antiquities Law, Cap. 31, was amended by the addition of the word "Antiquities" at the end of sub-sections (1) and (2) of the said section 10.
In the result, I find that the Prosecution failed to establish a prima facie case against all the accused sufficiently to require them to make a defence on both counts for the reasons I have explained herein above and therefore the submission of the learned counsel of the defence is sustained and in consequence all the accused are acquitted and discharged on both counts.
Accused acquitted and discharged.