|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(V17) 1 CLR 91
1944 January 28
[JACKSON, C.J., AND HALID, J.]
NICOS COSTA NICOLAIDES,
Appellant,
v.
THE POLICE,
Respondents.
(Criminal Appeal No. 1778.)
Form of Charge-Cyprus Courts of Justice Order, 1927, Clause 82-Courts of Justice Law, 1935, Section 40 (1) (c)-Public Place-Cyprus Criminal Code Order in Council, 1928, Section 162.
The appellant was living in a room in an hotel of which the windows faced the windows of a girls school. When in a state of undress he noticed he was being observed by a girl looking into his room from one of the opposite windows; he thereupon made indecent gestures to her. He was convicted of committing an act of indecency in a public place under section 162 of the Cyprus Criminal Code Order in Council, 1928.
Held: In a charge under section 162 of the Cyprus Criminal Code the particular public place and the acts alleged to constitute the indecency charged should be specified. In ordinary circumstances an hotel bedroom is not a public place within the meaning of the section.
Appeal from a conviction by the District Court of Nicosia.
Appellant in person.
M. Michaelides for the respondents.
The facts of the case are fully set forth in the judgment of the Court which was delivered by:
JACKSoN, C.J.: In this case we feel no doubt that the charge did not comply with clause 82 of the Cyprus Courts of Justice Order, 1927. It was not so framed that the accused would know what facts were alleged to constitute the offence with which he was charged. The particular "public place" should have been specified (Police v. Csapo, C.L.R. XV (II) 101), and so also should the acts alleged to constitute the indecency charged.
Nevertheless although this particular point must be decided in favour of the appellant, we have still to consider whether the wrong decision of the District Court in this respect resulted in any substantial miscarriage of justice. We are satisfied that it did not. The defendant asked for, and was given full particulars of the offence charged before any evidence in support of it was heard and it is clear that he was in no way prejudiced in his defence. We think therefore that, so far as concerns this particular ground of appeal, the case falls within the principles of section 40 (1) (c) of the Cyprus Courts of Justice Orders and Laws, 1927-1935, and that the mistaken decision of the trial Court on this particular point does not, by itself, justify us in allowing this appeal. We refer, on this point to the English case of Rex v. Thompson (1914 2 K.B. at p.99).
We must not he understood, however, to underrate, in any way, the importance of strict compliance with clause 82 of the Cyprus Courts of Justice Order on the part of those framing Charges and we trust that due attention to the requirements of that clause will always be paid.
There remains the second ground on which leave to appeal was given namely, the allegation that the place in which the act of indecency was said to have been committed was not a "public place" within the meaning of section 162 of the Cyprus Criminal Code. The place was in fact the bedroom of an hotel and the windows of the room faced the windows of a girl's school which, according to the evidence, was about 30 metres away, across the street. it is clear from the evidence that persons in one of the classrooms of the school could see into the bedroom of the hotel in which the defendant was at about midday on the day of the alleged offence and that two persons, a schoolgirl and one of the mistresses, did see him committing acts which, they described as acts of indecency it is also clear that the defendant could see these witnesses from the window of the room in which he was.
"Public place" is defined section 5 of the Criminal Code and the argument of counsel for the Crown, as we understood it, was that the bedroom of an hotel could not be said to be a "public place" within the meaning of section 162 if the person committing an act of indecency in it was occupying the room in the normal course, but would be a "public place" within the meaning of that section if the person committing an act of indecency in was in fact a trespasser. We are unable to follow that argument and in our opinion the question turned on quite other considerations.
The bedroom of an hotel is obviously a place where people normally dress and undress, and grant caution must clearly be exercised before an exposure occurring in such circumstances can be treated as a criminal offence. We do not say that in no circumstances could an offence against section 162 of the Criminal Code be committed in an hotel bedroom. We do not say that if a person deliberately stood in the window of such a room and deliberately exposed himself to passers-by in the street, or even to people in the windows of the house opposite, no offence would be committed. We are not called upon to decide that point. In the present case the circumstances are quite different. The appellant was standing some feet back from the window of the bed-room, and his own statement is that he was in the room with his mistress. There is no evidence of deliberate exposure to anyone outside the room, but there is evidence of indecent gestures on his part when, being then in a state of undress, he saw that he was being observed by a girl looking into his room from one of the opposite windows. This girl thereupon fetched a teacher and, upon her appearance, he turned his back to the window. There can be no doubt that the appellant's behaviour was highly improper and, in fact, indecent. But having regard to the place, and also to the circumstances, in which the indecency occurred, we do not think that it can properly be treated as an act of indecency in a public place within the meaning of section 162 of the Criminal Code. This appeal must therefore be allowed and the conviction quashed.