clr/1988/1988_1_555.pdf

(1988)2 C.L.R.124; ft v.Cambell [1959]2AllE.R.557; ft v. Thatcher[1958]3AllE.R.410; 15 Connelly v.D.P.P. 11964]2AllE.R.401; ReKakos

(1985)1C.L.R.250. Application. Application for leave to apply for an order of certiorari to bring C t & ^ & q u a s h an order of the Assize Court of Limassol m a d e on 20 26.8.88 in Criminal Case No. 23802/87 whereby the trial of the accused was adjourned to the next Limassol Assize Court. G. Cacoyannis with M. Coukidou (Miss), for the applicant CUT. adv. vult 555 Inre EMnas

(1988)PIKISJ. read the following judgment. Thisisan application of Yiannakis P. Ellinas for leave to apply for certiorari to bring up and quashan orderoftheAssizeCourtofLimassolmadeon26/8/ 88 whereby the trial of the accused inCriminal Case No. 23802/ 87, pending before the Assize Court then in session, was 5 adjourned to the next Limassol Assize Court due to be convened on 26/9/

1. Also, application is made for leave to apply for mandamus to order the Assize Court of Limassol that was in session on 26/8/88 tohear and determine preliminary objections of the applicant and, lastly, leavetoapply foran orderprohibiting 10 the Assize Court, before which the case was adjourned, from taking cognizance of it. Thefactual background totheapplication elicitedinan affidavit swom to by Marion Coukidou, so far as immediately relevant to the present stage of the proceedings, isbriefly the following: 15 Theapplicant wascommitted totrialbefore theSummerAssize Court of Limassol on a number of charges. Following the committal order an information wasfiled bythe Attorney-General whereupon the case became a pending matter before the Assize Court that commenced its session in May,
2. Criminal Case 20 No. 23802/87 was not the only case in respect of which the appellant was committed for trial before the Assizes; he was also put upon trial in Criminal Case No. 22406/
3. On 26th August, 1988,judgment wasgiven inthe lattercase and theapplicantwas convicted and sentenced to a term of imprisonment. 25 Notwithstandingthesubmission ofcounselfortheapplicanttothe contrary, theAssizeCourtadjourned thehearingofCriminal Case No.23802/87 tothenextAssizes,duetobeconvened on 26/9/88 « inview of the appointment to the Supreme Court, effective from 1/9/88 of the PresidingJudge Chrysostomis, P.D.C.» 30 Counsel for the applicant submitted that the incapacitation of anyone member of the AssizeCourtdoes notentailsuspensionof the session, as the Full Bench of the Supreme Court recently confirmed by its unanimous judgment in Republic of Cyprus v. Panayi, aliasKavkaris,and Others*. Nordoessuch incapacitation, 35 counsel added, provide avalidground for theadjournment of the case. The case of Kavkaris supports the proposition that incapacitation of anyone member of the Assize Court does not 1ggSgi)2C.LR.
4. 556 1 C.L.R. In r e EIHnae PUds J . result eitherintheinterruption ofthesection oritsdiscontinuance. Furthermore, it confirms the impersonal character of theAssizeCourt.Thehearing ofthecaseslistedbefore theAssize Court isnot dependent ontheamenity ofthe members originally 5 nominated, or anyone of them, tocontinue sittingas membersof the Court. Furthermore, counsel questioned the competence of theAssizeCourttoadjourn withouttheconsentoftheaccused the hearing of a case to the next Assizes, a proposition he supported by reference to English lawand practice*. 10 Inthe submission of counsel, the power of the Assize Court to adjourn a case to its next session, is similarly circumscribed in Cyprusbyvirtue of theprovisionsof s.20, para.3 inparticular, of the Courts of Justice Law -14/60, enjoining the Assize Court to carry out atthe end of every session an inquiry toensure «that no 15 person isdetained exceptinaccordance with the law,and that the administration of criminaljustice isnot unduly delayed.» Section 48 empowers everyCourttoadjourn atitsdiscretion a case. In the submission of Mr. Cacoyannis, this provision is inapplicable to cases pending before the Assizes or, more 20 precisely, itdoes not empower theAssizeCourttoadjourn a case for hearing to a future session of the Assizes. The word «court» encompasses every court of competent jurisdiction. Therefore, theAssizeCourtcan adjourn casespending before itfrom time to time. Whether the power vested by s.48 empowers the Assize 25 Court to adjourn a case to a future session of it, and under what circumstances this power may be exercised, has not been canvassed in any decided case; at least so far as I am aware. The test for leave toapply foraprerogative writisthat ofa prima facie case.Whatisconnoted byaprima facie case, wasdiscussed In Re 30 Kyriacos Georghiou Kakos**. Legal propositions can, of course, bereadily explored at anystage oftheproceedingsand leavewill not be granted merely because the statement of the law on a subject iscomplicated or itselicitation laborious. Addressingmyself totheissuesbefore me,guided bythe above 35 principles, Iam of opinion that applicant has made out a prima * (See,Archbold,4thed., para.4-36;Archboid•CriminalPleading, Evidence andPractice, 37th ed., para.
5. Halsbuty' sLaws ofEngland. 4thed.. Vol.11,para. 1458, alsopara.
6. R v.Campbell

(1959)2 AllE.R. 557;R. v.Thatcher

(1967)3AllE.R. 410;Connelly v. D.P.P.

(1964)2AUE.R. 401). "

(1985)1C.L.R. 250. 557 PUdsJ . Inre ElUnas

(1988)facie casethatthe orderoftheCourtentailingtheadjournment of the case to a future session of the Assize Court for reasons of incapacitation of one of its members, is fraught with an error apparentontheface ofit,suchastoprimafaciecastdoubtson the Ctffidity oftheorder.ThatbeingthecaseIconsideritinopportuneto 5 debate atthisstage any oftheremaining legal issuesaffecting the power ofthe Assize Court toadjourn a casetoa future session of it. These questions will be answered in the context of the application fortheissueoftheprerogativewritssoughtforinthese proceedings. Leave is granted to the applicant to apply for 10 certiorari, mandamus and prohibition, as sought for in the application.Meantime,criminalproceedingsinCriminalCaseNo. 23802/87 (Limassol District Court) are stayed. The applicant is directedtofilehisapplicationwithinfivedays.Theapplicationwill be served upon the respondents. 15 The case isfixed before theCourt for further directionson 14/ 10/88at9 a.m. Application granted. 558