(1988)1988November 8 (PIKIS,J.) IN THE MATTER OF AN APPLICATION BY OR ON BEHALF OF YIANNAKISP. ELLINAS, OF LIMASSOL,WITH REGARDTOTHE ADJOURNMENT BY THE LIMASSOL ASSIZE COURT OF CRIMINALCASENO.23802/87TO26.9.88FORTRIALTHEREOF BYTHE NEXTASSIZECOURTSITTING INLIMASSOL. (ApplicationNo. 154/88). CriminalProcedure —Assize Court— Whether ithaspower to adjoum acasepending before itto/isnextsession, withouttheconsent of the accused — Question determined in the affirmative— TheCriminal Procedure Law, Cap. 155, s.48. Courts Justice— The Courts of Justice Law 14/60 —Assize Courts— Position of, inthejudicial system. 5 Assize Courts— Comparison between Assize CourtsinEngland (priorto theirreplacement by Crown Courts)andtheAssizeCourtsof Cyprus. The AssizeCourt of Limassol adjourned thecase ofthe applicant, which waspending before it,tothe nextsession oftheAssizeCourt, 10 without the consent of the accused (applicant) and, in fact, contrary tohiswishes. Having obtained the necessary leave*, the applicant filed the presentapplication forcertioraritoquashtherulingfor adjournment. Atissueintheseproceedingsisnotthereasonoftheadjournment, 15 but thejurisdiction ofan AssizeCourt toadjourn acasebefore ittoa nextsession, asopposed toanadjournment fortrialduringthe same session of the Assize Court. Held, dismissing theapplication:
(1)TheAssizeCourt, asajudicialinstitution,wasinheritedfrom the 20 English system, adapted to a colonial model established in many English colonies. UnlikeEngland,questions of both lawand factare decided by professional Judges. In the days of colonial rule, it was modelled toa fargreater extentthantodayon itsEnglishc >unter-part. *See
(1988)1C.L.R. 555. 644 1 C.L.R. 5 10 15 20 25 In re Ellinas
(2)Courts of Assi2e in England operate by virtue and under a commission of assize and were ordinarily presided over by a High CourtJudge.AnumberofStatutesmadeprovision fortheregulation of a Court of Assize in England to postpone or adjourn a case to a future sessionofit.Thesewerepremisedonthepropositionthaisuch power resided in the Assize Court, and need arose to curtail or modify itin certain respects*.
(3)In Cyprus, the Courts of Justice Law 14/60, cast the Assize Court ina newframe. The Constitution vested judicial power in the Supreme Court and inferior courtssubordinate thereto, established by law(see Part X of the Constitution, Art. 152.1).The Assize Court isone of those lower Courts. Itisnotconvened on theauthority ofa commission. Itisapermanent feature ofthejudicialsystem.The fact that the Assize Court is not in continuous session, does not detract from its permanence. Nor does it alter itsposition as a permanent feature of ourjudicial system.
(4)The procedure before the Assize Court is regulated by the CriminalProcedure Law-Cap. 155.Thepowerofacourt exercising criminaljurisdiction toadjourn a casepending before it,isregulated by the provisions"of s.48 of the law; it applies to every competent court exercising criminal jurisdiction. The Assize Court is ' unquestionably acompetent Court inthesense ofs.48,inrelation to cases the subject of an information filed by the Attorney-General before it (s.107 -Cap. 155).Section 48 applies indistinguishably to courts exercising cnminaljurisdiction.The power topostpone isnot limited to the adjournment of the case to a future date before the same session of the Court. Application dismissed. No order astocosts. 3 0 Casesreferredto: Republic v.Panayi,alias, Kavkarisand Others
(1988)2C.L.R. 124; InreKakos
(1985)1C.L.R. 250. Application. Application for an order of certiorari to remove into the 3 5 Supreme Court and quash an order of the Assize Court of Limassol whereby Criminal Case No. 23802/87 was adjourned to 26.9.88 for trial by the next Assize Court sitting at Limassof. *TheCnminalProcedureAct 1851.see Halsbuiy'sStatutes ofEngland 645 Inre Elllnas
(1988)G. Cacoyannis, for the applicant. L. Loucaides, Deputy Attorney-General, for the Republic. Cur.adv. vult. PIKISJ.readthefollowingjudgment.Atissueinthisproceeding isthe competence of the Assize Court to adjourn a case pending before itto the next session of the Assizeswithout the consent of the accused or, indeed, as inthiscase, contrary tohiswishes. 5 None of the decided cases answers the question. This has led Mr. Cacoyannis to make extensive reference to English statutory law and practice affecting thejurisdiction of the Court ofAssize in IQ England to postpone or adjourn a case to a future session of the Court. He submitted that no jurisdiction lieswith theAssize Court to adjourn a case to a future meeting of it without the consent of the accused.Mr.Loucaidesargued thatnobenefit can be derived from English statutory or caselaw, because the jurisdiction of the 15 Assize Court in Cyprus to adjourn a case to a future date, is regulated byexpressstatutoryprovisions.Hereferred tos.3 of the Courts of Justice Law -14/60, providing for the establishment of the Assize Court as a statutory Court within the framework of lower courts subordinate tothe Supreme Court. Like every court 20 exercising criminal jurisdiction, counsel submitted, the Assize Court enjoys the powers conferred by s.48 of the Criminal Procedure Law - Cap. 155, an enactment that vests power in every competent court exercising criminaljurisdiction to adjourn, at its discretion, any case to a future session of it. Consequently, 25 the adjournment of thecasebytheAssizeCourttoafuture session of it, is not defective for lack of jurisdiction. The reasons for the adjournment, namely, the impending appointment of the President oftheAssizeCourttotheSupremeCourtand sequential inability to preside over it, are referable to the exercise of the 30 discretionary power residing with the Court; not in issue as such. Furthermore, he submitted that as the next session of the Assize Court was due to be convened in about a month' s time, no conceivable prejudice could beoccasioned tothe appellant. Mr.Cacoyannis submitted thatthecase had, inanyevent, been 35 adjourned for no good reason, a proposition supported by the recent decision of the Full Bench of the Supreme Court, in Republic v. Panayiotis Agapiou Panayi, alias Kavkaris and 2 646 1 C.L.R. In re Ellinas Pikis J. Others
(1988)2 C.L.R. 124. In that case it was decided that the functioning of the Assize Court, or the continuation of its session, is not dependent on amenity of individual members of the Court to continue-their 5 participation inany onecase. Inthatsense, thecomposition of the Court isnodoubt impersonal. The Supreme Courtmay authorise a change of the composition of the Assize Court during the continuance of its session upon cause. However, as counsel acknowledged, at issue here is not the erroneous exercise of υ discretionary powers onthepart of theCourt,but theexistence or absence of jurisdiction toadjourn a case to a future session of the AssizeCourt.ForthisCourttointervene inexercise of the powers vested initunderpara.4 of article 155 of the Constitution, itmust appear that the Assize Court had no jurisdiction to adjourn the 15 case, except "upon the application or at least with the consent of the accused. If jurisdiction vested in the Court to adjourn the case, the present proceedings are not the proper forum for the review of the propriety of the exercise of its discretionary powers (In re Kakos
(1985)' 1 C.L.R. 250). 20 For the respondents it was contended that not only it was competent for the Assize Court to adjourn the case, but also desirable; no less in the interests of the accused in order to avoid trial by the same Assize Court that earlier on in its session convicted theapplicant,after aplea of notguiltyonother charges, 25 and sentenced him to aterm of imprisonment. I have given consideration to the careful agruments of both counsel and took time to consider my decision. Having duly reflected on thevarious aspects of the application, my conclusions and the reasons for them,are set out below: The 30 Assize Court, as a judicial institution, was inherited from the English adapted, as I perceive, to a colonial model established in many English colonies. UnlikeEngland,questions of bothlaw and tact are decided by professional Judges. In the days of colonial rule, it was modelled to a far greater extent than today on.its 35 English counterpart (repealed and replaced after Independence by Law 14/60). Although Ihave been unable totrace to its origin the history of CourtsofAssizeinEngland, itisbeyond controversy that Courts of Assize operated by virtue and under a commission 647 Pikls J. In re EUInas
(1988)ofassizeand wereordinarilypresided overbyaHighCourtJudge (Courts of Assize were abolished by the Courts Act 1971 and replaced by Crown Courts). Anumber of English Statutes made provision for the regulation of a Court of Assize in England to postpone or adjourn a case to a future session of it. To my 5 understanding they are premised on the proposition that such power resided in the Assize Court, and need arose to curtail or modify itincertainrespects.Themostnotableofthese enactments is the Criminal Procedure Act 1851 (see, Halsbury's Statutes of England, 3rd ed., Vol. 8, pp. 110-111). Section 28 of the Act, in 10 additiontorequiringtheaccused topleadbeforethesessionofthe AssizeCourtbefore which hewascommitted fortrial, empowered the Court to adjourn a case mainly at the instance of the prisoner to the next or subsequent session of it in order to enable him to prepare his defence (amended by the Administration of Justice 15 (Miscellaneous Provisions) Act 1933). Iam unable to uphold the submission of counsel for the applicant that the provisions of the above Statute restricted the powersofan AssizeCourt in England toadjourn acasetothenextsession,exceptwiththeconsentofthe accused. A series of English decisions suggests that the Assize 20 Courthadjurisdiction*toadjourn a casetoasubsequentsessionof it whenever this was expedient in the interests of justice. Thus, cases have been postponed, inter alia, on account of the unavoidable absence or illness of a witness, the existence of prejudice in the jury, and to avoid surprise from failure to 25 communicate evidence to the prisoner not produced before the magistrates (the subject is discussed in Archbold, Criminal Pleading, Evidence and Practice, 37th ed., para. 242).Inorderto prevent prejudice or oppression to the accused from repeated adjournments ofa casefrom onesession oftheAssizeCourttothe 30 next, the Assizes Relief Act 1889 restricted amenity of the next session of the Assize Court to adjourn to a subsequent session, unless delay was due to special reasons, such as impossibility of producing the witnesses before the Court. Next, we shall examine the position of the Assize Court within 35 the context of the Cyprus Judiciary: The Courts ofJustice Law -14/60, casts the Assize Court ina new frame. The Constitution of the Republic established the Judiciary as a separate and independent power of the State. Judicial power was vested in the Supreme Court and inferior 40 courts subordinate thereto, established by law (see Part Xof the Constitution, article 152.1). The Courts of Justice Law was 648 1 C.L.R. InreEltinas PUdsJ. enacted inthespiritofandsubjecttotheprovisionsofarticle 152.1 of the Constitution. It made provision for the establishment of inferior courts in which criminal and civiljurisdiction was vested. The Assize Court is one of those courts. Its jurisdiction, 5 composition andfunctioning, areallregulated bytheprovisionsof Law 14/
- Unlikea Court of Assize in England, the AssizeCourt inCyprusisnot convened ontheauthorityof acommission. Itisa statutory lower Court (theAssizeCourt in England wasa superior Court) that functions within the framework of established judicial 10 order. Itisapermanent feature of thejudicialsystem.Thefact that theAssizeCourtisnotincontinuoussession,doesnotdetract from its permanence. Nor does it alter its position as a permanent feature ofourjudicialsystem.Itissignificant tonotethats.3ofLaw 14/60 provides that an assize court shall be composed orheld (in 15 every district)asthere shall be a districtcourt inevery district. • The procedure to be followed by the Assize Court, like the District Court, in the exercise of itssummary criminaljurisdiction, is regulated by the Criminal Procedure Law - Cap.
- The power of a court exercising criminaljurisdiction toadjourn a case 20 pending before it,isregulated bytheprovisionsofs.48 ofthelaw; itappliestoevery competent courtexercising criminaljurisdiction. The Assize Court isunquestionably a competent Court in the sense of s.48, inrelation to cases the subject ofan information filed by the Attorney-General before it (s.107 - Cap.155). 25 Section 48 applies indistinguishably to courts exercising -nminai jurisdiction. The power to postpone is not limited tothe adjournment of the case to a future date before the same session of the Court. If every meeting of the Assize Court .could be regarded as a self-constituted session of the Court, 30 separate and independent from subsequent sessionsofit,itmight beargued, notnecessarilywithsuccess,thatthepowerto adjourn, conferred bys.48,waslimitedtopostponement ofthecasewithin thesame session of the Court.Asearlierexplained, thisisnot the position oftheAssizeCourt. Itisa permanent statutory Court that 35 functions in every'district of the Republic at such times as the Supreme Court may direct. Iconclude that the AssizeCourt hadjurisdiction to adjourn the case to the next session of it.Whether itsdiscretion was properly exercised, is not the subject of these proceedings and, for that 40 reason, I shall refrain from expessing a concluded opinion on the matter. 649 Pikis J. In re Ellinas
(1988)The application for the issue of certiorari will, therefore, be dismissed Order accordingly There shall be no order as to costs Application dismissed No order astocosts 650