(1966) 2 CLR 112
1966 December 9
[*112]
[VASSILIADES, AG. P., JOSEPHIDES, J., AND LOIZOU, AG. J.]
KIAMIL ALI,
Appellant,
v.
THE REPUBLIC,
Respondent.
(Criminal Appeal No. 2849)
Criminal Law-Firearms-Appeal from the conviction for carrying a firearm, contrary to section 3 (1) (a) of the Firearms Law, Cap. 57 (as amended)-Identification of accused-Nature of the article accused was seen holding at the material time-No reason for interfering with trial Court’s findings.
Evidence in Criminal Cases-Appeal from the conviction carrying a firearm, contrary to section 3 (1) (a) of the Firearms Law Cap. 57 (as amended)-Identification of accused-Nature of article seen in appellant’s hands at the material time-Ample evidence to support conviction.
Findings of fact-Conviction for currying a firearm, contrary to section 3 (1) (a) of the Firearms Law, Cap. 57 (as amended)-Sufficient evidence upon which trial Court could make the findings of fact they made.
Firearm-Carrying of-See under “Evidence in Criminal Cases”.
Cases referred to:
Patsalides v. Afsharian (1965) 1 C. L. R. 134;
Kemal Djemal v. The Republic (Reported in this part at p. 21 ante).
Appeal against conviction.
Appeal against conviction by appellant who was convicted on the 14th October, 1966, at the Assize Court of Limassol (Criminal Case No. 7974/66) on one count of the offence of carrying a firearm contrary to section 3 (1) (a) (2) of the Firearms Law, Cap. 57 (as amended by Law 11 of 1959) and was sentenced by Malachtos, P.D.C., Vassiliades and Loris, D.JJ. to three years’ imprisonment.
E. Y. Avdjioglou, for the appellant.
L. G. Loucaides, Counsel of the Republic, for the respondent. [*113]
The facts sufficiently appear in the judgment of the Court:
VASSILIADES, AG. P.: The application for reopening, at this stage, the question of sentence was carefully considered by the Court, with all the sympathy learned counsel for the appellant has inspired for his client’s case.
In the light of what counsel had to say in presenting his client’s appeal against conviction, regarding the evidence in this case, we did not think that reopening the question of sentence would serve any purpose in the present appeal.
Mr. Avdjioglou: I withdraw the application, Your Honours.
VASSILIADES, AG. P.: Having considered the matter during the recess, we find it unnecessary to call upon you, Mr. Loucaides, to support the conviction.
VASSILIADES, AG. P.: Perhaps you will be good enough, Mr. Avdjioglou, to explain to your client in his own language the judgment.
Mr. Avdjioglou Certainly, Your Honour. It is my duty to the Court.
The following judgment was delivered by:
VASSILIADES AG. P.: As pointed out by learned counsel for the appellant, right from the opening of this appeal, the case turns on two main questions of fact: The issue of identification, and the issue of the nature of the article which the appellant is charged to have been carrying at the material time.
The evidence at the trial Court was mostly directed to these two questions. Witnesses were examined and cross-examined at length and, in due course, their evidence was considered by the trial Court in their judgment.
The trial Court made their findings on these issues; and this Court will only interfere with such findings, if the appellant is able to show that there is sufficient reason for intervention. This approach is well-established by by a line of cases to which I need not refer in detail. I shall only mention Patsalides v. Afsharian, (1965) 1 C.L.R. 134, where this matter was considered, and the approach of the court of appeal to trial Court findings, in both civil and criminal cases, was stated in more than one judgments. [*114]
There can be no doubt that in this case there was ample evidence upon which the trial Court could make the findings of fact which they did make; and upon which the conviction rests.
Mr. Avdjioglou referred us to Kemal Djemal v. The Republic, which was dealt with on appeal by this Court in July last. (Reported in this part at p. 21 ante). That was a case of a similar nature, but clearly distinguishable from the present case, on the facts.
On the issue of the identification of the accused, which was also one of the main issues in that case, the judgment reads: (page 23) “Counsel for the appellant submitted that the evidence of identification was not sufficiently reliable, as it came from Policemen who were interested in the result; and who, according to their own evidence, had only seen the person on the verandah for a few seconds… We are of opinion-the judgment reads-that short as the period of time during which the Police witnesses saw the appellant, they had ample opportunity to identify a person known to them, whom they had approached within a few yards, in broad daylight. We do not think that the finding of the trial Court regarding the identification of the appellant can be reasonably challenged“.
In the present case, one of the police witnesses was face to face with the accused or considerably longer time than a few seconds, while the latter was holding his gun very close to the body of the witness. During the same period of time, the other two police witnesses were watching the scene from a distance of a few paces. And what is more important, there is evidence that several men and women, who intervened in order to put an end to this dangerous encounter and the most serious consequences which might result from possible developments, and who must have been persons well knowing the accused, were not called by the defence to give evidence in this case. If the person with the dangerous weapon was not the accused, these good neighbours would, undoubtedly, be very willing to say so on oath at the trial, and probably state who was the person holding the gun.
Mr. Avdjioglou tried to explain this away by saying that such witnesses might not find it possible to come to Court and give evidence in a case of this nature. This is a very serious matter; especially in the conditions now prevailing in Limassol town. Witnesses, whose evidence was obviously material in this serious case, should have [*115] been summoned to assist the Court for the purpose, if they appeared to be unwilling to do so without summons. And if there appeared to be any interference with such witnesses from any direction, the matter would be considered as one of the utmost importance; and all steps necessary to deal with such interference, according to Law, would have to be taken promptly and effectively. Interference with the course of justice is a matter the importance of which need neither be stressed here, nor can it be overstated.
As regards the nature of the article which the appellant was holding at the material time, this case is also clearly distinguishable on the facts from Kemal Djemal’s case (supra). The evidence accepted by the trial Court, is that the appellant actually loaded at the time his weapon, in circumstances which could leave no reasonable doubt-in fact no doubt at all-as to the nature of the firearm in appellant’s hands.
The evidence upon which the trial, Court made their findings on both these main issues, is overwhelming. Having accepted such evidence as true and substantially correct, the trial Court could make no other findings; indeed, there was no room for any other view; and we see no reason whatever for interfering with the trial Court’s findings, and the conviction based thereon.
This appeal must he dismissed. But we shall make directions for the sentence to run from the date of conviction.
Appeal dismissed. Order
accordingly.
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