(1968) 2 CLR 100
1968 May 31
[*100]
[VASSILIADES, P., STAVRINIDES AND HADJIANASTASSIOU, JJ.]
DOROS KYRIACOU TAMBOURAS,
Appellant,
v.
THE POLICE,
Respondents.
(Criminal Appeal No. 3001)
Criminal Law-Conviction-Stealing a wireless set-Finding of fraudulent misappropriation unsatisfactory-Cannot support the conviction.
Appeal-Findings of fact made by the trial Court-Unsatisfactory-Court of Appeal will interfere-See above.
Findings of fact-Appeal-See above.
Quashing the conviction the Court:
Held, considering the evidence as a whole w are unanimously of the opinion that the trial Judge’s finding of misappropriation by the appellant, is unsatisfactory (Koumbaris v. The Republic (1967) 2 C.L.R. 1 at p. 9; Meitanis v The Republic (1967) 2 C.L.R. 31 at p. 41; and that it cannot support the conviction.
Appeal allowed. Conviction quashed.
Cases referred to
Koumbaris v. The Republic (I967) 2 C.L.R. 1 at p. 9, followed.
Meitanis v. The Republic (1967) 2 C.L.R. p. 31 at p. 41 followed.
Appeal against conviction and sentence.
Appeal against conviction and sentence by Doros Kyriacou Tambouras who was convicted on the 29th April, 1968 at the District Court of Nicosia (sitting at Morphou) (Criminal Case No. 287/68) on one count of the offence of stealing contrary to sections 255 (1) and 262 of the Criminal Code Cap. 154 and was sentenced by Hji Constantinou D.J., to pay a fine of £20.
A. Pantelides, for the appellant.
L. Loucaides, Counsel of the Republic, for the respondents. [*101]
The judgment of the Court was delivered by:
VASSILIADES, P.: This is an appeal against conviction and sentence. The conviction is challenged on a number of grounds stated, both in the original notice and a supplementary note, which, however, can be summarized in two:
(a) that the findings of the trial Judge are against the weight of evidence; and
(b) that in any case the fraudulent misappropriation of the stolen article was not established.
The appellant was charged of stealing a wireless set “between the 1st January and 31st December, 1962” valued at £12.-the property of the complainant. Eventually the trial Judge found that on the evidence before him “the charge should, be , amended so as to read ‘1963 ‘ instead of ‘1962’ and of ‘unknown value’ instead of ‘valued at £12’ ”; and directing amendment of the charge accordingly, convicted the appellant on the charge as amended. This is sufficient to indicate the uncertainty in the circumstances in which the alleged offence was committed.
The appellant is an electrician who at the material time was working in the shop of another mechanic-electrician at Morphou. The complainant who lives at a neighbouring village, handed over to the appellant an old wireless set for repair at the shop. Notwithstanding considerable uncertainty as to times and conversations regarding the matter, it is established beyond doubt that the appellant informed the owner of the wireless set that it was beyond repair, and that he could collect it from the shop. The complainant agreed to do so and promised to for his set later. Considerable time later, the appellant left the shop in question, and went abroad leaving the wireless set in the shop, together with other similar articles, with the request to the shop-keeper and another person who was working, in the shop and who gave evidence in this case, to inform the proprietors of unrepaired sets, including the complainant, to pass and collect their sets from the shop.
Several years later, when the appropriate authority took steps in connection with the annual licence of the wireless set in question, the complainant reported to the police that he had no such set in his possession as he had delivered it to the appellant. In the meantime the shop-keeper [*102] removed his business elsewhere and complainant’s set could not be traced. When questioned by the police, the appellant stated the facts as above adding that the missing set may have been thrown in the wastepaper basket together with other useless articles when the shop-keeper moved his shop away.
The trial Judge on the evidence before him, could not make a definite finding as to what happened to complainant’s missing set. Reaching the conclusion that the appellant was a bailee of the set, who had failed to give a satisfactory explanation as to what became of it, the trial Judge was “rather inclined to the view”, as he put it in his judgment (p. 14F) “that the accused has misappropriated it in some other way which he failed to disclose to the Court”
Learned counsel for the prosecution, very properly and fairly conceded during the hearing before us, that upon such a finding the conviction challenged by the appeal, could not be supported.
Considering the evidence on the record as a whole, we are unanimously of the opinion that the trial Judge’s finding of misappropriation by the appellant, is unsatisfactory (Koumbaris v. The Republic (1967) 2 C.L. R. 1 at p 9; Meitanis v. The Republic (1967) 2 C.L.R. p. 31 at p. 41); and that it cannot support a conviction either on the original or on the amended charge. We, therefore, allow the appeal, quash the conviction and set aside the sentence.
Appeal allowed.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο