clr/1987/1987_2_177.pdf

(2)of the Constitution a .dthat it failedtogive totheappellant hisminimun constitutionalnghtssafegtardedby Article 12

(5)(

1. b)and(
2. c)andArticle30

(3)(b)and (d),oftheConstitution,namely to have adequate time for the preparation of his defence and to defend himself in person or througha lawyer of his own choice The factsare bnefly asfollows On 26 4 85 theappellant appearedbefore the trial Court and entered a plea of not guilty The case was adjourned for heanng on 10 7 85 The case was furtheradjourned to8 10 85 On that day the hearing began and appellant s counsel cross examined the first prosecution witness The heanng was then adjourned for continuation on 14 10 85 On that day the appellant was present, but not his counsel The trialJudge decided to continue with the heanng After the testimony of the second witness fortheprosecution,theprosecutioncloseditscaseandthetrialJudge, having found that there had been made out a prima facie case,called upon the accusedto make his defence 177 Charalambides v. Police

(1987)At that moment appellant's counsel appeared before theinal Judge and protested forwhat had happened,statingat the same time,that he had been engaged before another Court He applied foran adjournment in orderto have time to file a certioran The tn<a!Judge turned down the application Counsel forthe appellant 10whom theevidence given mhisabsence was 5 read, conducted the caseto itsend. Held, dismissing the appeal· 0 ) The appellant had ihe services of an advocate of his choice,practically throughouttheheanngof hiscase The fact that his advocate because of other engagements was not available todefend him forpart of the case, is not the fault of theCourt butthe fault of the 1 0 advocate who failed to make proper arrangements andarrange his diary accordingly Moreover thedefencewasgiven ample lime foritspreparation

(2)Both the ?aid grounds of appeal should fail because counsel for the appellant had the bnef evidence ofthe secondprosecution witness, who had testified in hisabsence, butin appellant's presence, read outtohim and he 1 5 could, if he wanted, apply lo have ihe witness recalled for further cross examination, which hedidnot elect to do Appealdismissed Cases referredto Adamis and Another ν Eracleous

(1982)1 C L R 746. 20 Vakanasv ThomasandAnother {\982) 1C L R 530 Appeal against conviction. Appeal against conviction by Theodoulos Charalambides w h o . was convicted on the 14th October. 1985 at the Dtstnct Court of Nicosia (Criminal Case No. 6788/85) on one count of the offence 25 of driving without due care and attention contrary to sections 8 and 19 of the M o t o r Vehicles and Road Traffic Law. 1972 (Law No 8 6 of 1972) and was sentenced by Soupashis, D.J. to pay £ 1 3 . = fine and £ 7 = costs. C. Hadjioannou, A. M. Angelides, for the appellant. Senior Counsel 30 of the Republic, for the respondents. Cur. adv. vult. A. L O I Z O U J . read the following judgment of the Court. The appellant was f o u n d guilty and convicted of a charge of driving on 178 35 2C.L.R. Charalambldes v. Police A. Loizou J. the 6th day of December 1984, atNicosia, motor-carunder Reg. No. JX 814 on Grivas Dhigenis Avenue without due care and attention, contrary tosections 8and 19 of theMotorVehicles and Road Traffic Law 1972, (Law No. 86 of 1972), and he was sentenced tothirteenpounds fine and seven pounds costs. The facts of the case as found by the learned trial Judge are briefly these. On theday inquestion theappellant was driving his said vehicle on Stassinos street which is a side-road to Grivas DhigenisAvenue controlledby ahaltsign.Hewas following atthe 10 time another car that stopped at the halt sign. When that car moved onastheroadatthetimewas clearforit,theappellant also followed it and collided with motor-vehicle under Reg. No.JW 855, driven by ex-accused 2, along Grivas Dhigenis Avenue from thedirection of theAirport towards thetown. 15 Bothdrivers were prosecuted.Thepresentappellantas accused No. 1,was charged with onecountof driving withoutduecareand attention to which he pleaded not guilty and ex-accused 2 with three counts.The one for driving without due care andattention the otherfor driving without having in force apolicy against (bird 20 partyrisksand the last one for driving without the consent cf Λβ owner. Ultimately he pleaded guilty toall three of them. When the appellant tried to cross the whole length ο the Avenue, go tothe left handside and proceed on his way t™..ards Nicosia town, ex-accused 2 who was proceeding on the A ^ n u e , 25 applied hisbrakes leaving with theleft wheels ofhiscar13<ft.and with therightwheels 124 ft. brakemarks, butthecollision was not avoided. The pointof impactwas 12 ft. and 6 inches from the left handside of theAvenue tothedirectionthecarswere proceeding. DhigenisAvenue is40 ft. wide divided intofour lanes,twotoeach 30 direction. The learned trial Judge in the light of his findings based on the credibility of the witnesses as accepted by him and the real evidence adduced, concluded that the appellant was driving without due care and attention, as charged, as he omitted togive 35 way to thetraffic on theAvenue topass and then come outof the halt sign and cross theAvenue as he had a duty todoand this he did when the danger of collision with the other car which was proceeding thereon was evident. Moreso inview of the fact that hehadtocross thewhole width of theAvenue, before reachinghis 40 side of the road. In other words he entered into the main road 179 A. Loizou J· Charalambldes v. Police

(1987)when itwas notsafe for himtodoso And thathehad adutytoact diligently as a dnver who enters into a mam road would act on the supposition that the" dnver on the main road would act diligently (See Adamts andAnother ν Eracleous

(1982)1C L R 746, and Vacanas ν Thomas and Another

(1982)1C LR 530 ) 5 The appellant by his present appeal challenged the aforesaid conclusions of the learned tnal Judge and contended that the verdict was based on insufficient facts We have considered the totality of the evidence and looked at thebrake-marks andmeasurements marked onaplannottoscale 10 prepared by thePoliceTraffic Investigator, who visited the scene after theaccidentand took uptheexamination of thecase and we have come to the conclusion thatthere isno room whatsoever to interfere with the findings of fact and the conclusions drawn therefrom and in any way with the verdict of the learned tnal 15 Judge who directed himself correctly on the Law This, however, is not the end of the case as counsel for the appellant has argued two more grounds of Law, namely thatthe tnal Court did not give tothe appellant the benefits of a fair tnal contrary toArticle 30

(2)oftheConstitutionandthatitfailed togive 20 to the appellant his minimumconstitutionalnghts safeguarded by Article I2

(5)(

1. b)and (
2. c)and Article 30

(3)(b) and (d), of the Constitution,namely tohave adequate timefor thepreparationof hisdefence andtodefend himself inperson orthroughalawyerof his own choice. 25 The facts relevant to these issues are these The case came up for plea onthe26th Apnl 1985 Theappellantwas represented by hispresentcounsel andex-accused 2by Mr Mamantopoulos The appellant, entered a plea of notguilty tocount 1and ex-accused 2a plea of notguilty toCounts2and3,andguilty toCount4 The 30 case was adjourned for heanng on the 10th July 1985, and both accused were released on bail On that day the appellant was again represented by his counsel, and ex-accused 2, through his own counsel applied to the Court for leave to change his plea to oneofguilty on Counts2and3aswell Mr Mamantopoullosthen 35 prayed for anadjournment ofthecase toanotherdatefor facts and sentence because on accoutof an urgent commitmenthe had,as he said, to leave Nicosia The case was adjourned to the 8th October 1985, for heanng when both accused were present and the appellant was again represented by his counsel who cross- 40 examined the first prosecution witness, the Police Traffic Investigator Thefurther hearingof the casewas thenadjourned to 180 2 C.L.R. CharaJambides v.Police A. LoUou J. the 14th October, when according to the record of the Court the appellant was present but not his counsel. The record reads as follows: 5 «Counsel Mr. Hadjioannou was called repeatedly since 10.10hourswhilstnowthetimeis11.00o'clockandsoIshall proceedtohearthecaseintheabsenceofMr. Hadjioannou.» The second witness then was called who was the passenger in thecarof ex-accused 2. Hewascross-examined bythe appellant and the prosecution closed itscase.The learned trialJudge found 10 that there wasprima facie case and called upon the appellant to make his defence, after his rights were explained to him. It was 11.05 a.m. when at that stage Mr. Hadjioannou appeared. Mr. Hadjioannou statedthatuntilthatmoment hewasengaged before His Honour Judge Artemides as he had mentioned to the trial 15 Judge on the previous hearing that he would be so engaged and the record oftheCourtgoeson asfollows: 20 25 30 35 ^Hadjioannou:Iappeared and Iwasbefore you inorder to ask for an adjournment of the case. Ido not know how the hearingcontinued inmyabsence and Iam notinaposition to defend myclientsuitably. Court:Mr.Hadjioannou wascalled repeatedlysince 10.00 toappear before theCourt;until 10.35hedidnotappear and asaresultIhad nootherchoicebuttocontinuethehearingas the Court has a very heavy listand for that reason it had to complete the case. I must observe that the conduct of the advocates not to appear before the Courts when they have hearingsisa conduct whichisstrange to me. Hadjioannou: With all due respect I am here since 10:45, Mr.Artemidescalledme andIinformed myclientthatIshall go and adjourn the other case and also informed my colleagues. IhavesaidwhatI hadtosay, Icannotdefendmy client since there has been heard part of the evidence. I requestthatanadjournmentbe given so thatIshall proceed withcertiorari. Court:The application foradjournment isdismissed. Isee noreasonwhyIshouldadjournthecase. Hadjioannou: Icannotdefend myclient Hehasrightsfor thismatter. 181 A. Lotzou J. Charalambides v.Police

(1987)Court:Asregardsthecertioraritheprosecution alsohasthe rightof appeal after theend ofthe case. Hadjioannou: Inviewofyour interimdecision Ishallcrossexamine thewitnesswithreservation and alsoIwould likethe evidencegivensofarbereadouttome.(Evidenceread.)(The 5 appellant electstogiveevidence on oath).» Itis unnecessary to say anything more than that the appellant had the services of an advocate of his choice practically throughout the hearing of his case. The fact that his advocate becauseofotherengagementswasnotavailabletodefend himfor 10 part of the case, is not the fault of the Court but the fault of the advocate whofailedtomakeproperarrangementsandarrangehis diaryaccordingly. Moreoverthedefence wasgivenampletimefor its preparation. Wearesureitwasnottheintention oflearned counseltodictate 15 totheCourt the hoursofsittingandthe order inwhich caseswere to be taken and that is not what is safeguarded by the relevant Articlesof the Constitution. Anadvocate accordingtoRule5

(3)of the Advocates Etiquette Regulations 1966, has to be punctual when appearing in a case the rest being a matter of co-operation 20 between Bench and Bar,andweleavemattersatthat,aswe need not laydown any hard and fast rule on thismatter. In any event both grounds of appeal should fail because Mr. Hadjioannou had the brief testimony of the witness who gave evidence in his absence, but in the presence of his client who 25 cross-examined him, read out to him and he could, if he wanted apply to have the witness recalled for further cross-examination, which he did not elect todo. We need not therefore elaborate further on the rights safeguarded by the said paragraphs of the Constitution which 30 correspond to Article6

(3)(b)and (c)of the European Convention on Human Rights-Ratified bythe Republic under LawNo.39of 1962 -which hasbeen thesubject ofjudicial interpretation bythe European Commission andtheEuropean CourtofHumanRights, organs entrusted with the supervision of its application. (See 35 Digest of Strasbourg Case-Law relating to the European Convention on Human Rights.) Foralltheabove reasons theappeal isdismissed. Appeal dismissed. 182