(1988)1988October 27 (MALACHTOS,PIKIS,PAPADOPOULOS.JJ.) SALEMALIAL-HAMADANDANOTHER, Appellants, v. THEPOLICE, Respondent (CriminalAppeals Nos. 4974-4975). Appeal — Criminalappeal —Composition ofthe Courthearingsuch an appeal — The threeJudge bench constituted undersection 11
(3)of theAdministration of Justice Law, 1964 (Law33/64) —Numerical strengthening of— Ultimately a matter of discretion—Principles governing its exercise. Counsel for the appellants applied that the Constitution of the Court, which would trytheappeal, be numerically strengthened or thatthe appeal be heard bytheFull Bench ofthis Court. In making hisaforesaid application, he relied on the fact that one oftheissuesraised onappealisthecompetenceoftheAssizeCourt 10 toreviewthe legality and validity of warrants of arrestand search in the context of the determination of the admissibility of evidence recoveredorthatemerged asaresultoftheexecutionofthewarrant. Held, dismissing the application:
(1)A three Judge bench constituted under section 11(3} of the Administration of Justice Law, 15 1964(Law33/64) isthe naturalforum for hearingofcriminalappeals. However, Hadjisawas v. The Republic
(1986)2 C.L.R. 154 recognised that such a bench has competence to direct the enlargement oftheconstitution oftheappellatebenchchargedtotry _„ the case.
(2)Whether an enlarged bench will be directed is ultimately a matter of discretion for the Court. Without laying down a hard and fast rule, a strenqthened bench may be ordered ifthe legal issue is highly complex and the pooling of judicial resources is likely to contribute to its elicitation, or if the issues are of extraordinary 2 5 importanceeitherbecauseoftheirrepercussionsuponthelitigantsor 164 2 CUR. ΑΙ-Hamadv. Police because of wider repercussions on theadministration of justice To this list one may contemplate the constitution of a strengthened bench when legal propositions at issue are the subject of directly conflicting decisions of theSupremeCourt 5 10
(3)Thecompetenceof theAssizeCourttoinquire intothe validity of warrants of arrest and search is, no doubt, a very important question requinng careful consideration. On the other hand, the issue is notone of great complexity Furthermore,some aspects ofit are illuminated by the decision in Elltnas ν Republic (Notreported yet)
(4)IntheendthisCourthasnotbeenpersuadedthatitis necessary todirecttheenlargement of theconstitutionof theCourt Casesreferred to 15 Applicationdismissed Hadjisawasv ffepuWic
(1986)2CL R 154, Elhnasν Republic (Notreported yet), R ν ray/or[1950]2AHER 170, R ν Nesome [1970] 3 All ΕR 455 Poole ν Regina, 1960 EastAfnca Reports 62, 20 Wandsworth London Β C ν Winder [1984] 3 All ΕR 83 R ν Spencer 11985] 1All ΕR 673 R ν Howe [1968] 1All ΕR 833, Demetnadesv TheRepublic
(1977)3 C L R 213, 25 R ν Could [1968] 1All ΕR 849, Orphanides ν Michaehdes
(1968)1C L Η 295, Politis ν TheRepublic
(1987)2 C LR 116 Application. Application by Counsel for the appellants for an order that the 3 0 appeal be taken by the Full Bench of the Court Chr Pourgoundes, for the appellants R Gavnehdes, Senior respondents. 3 5 Counsel of the Republic, for the MALACHTOS, J The decision of the Court will be delivered byPikis.J PIKIS, J The appellants were convicted by the Assize Court of 165 PilrisJ. ΑΙ-Hamad v. Police
(1988)Limassol for conspiracy tokill, attempted murderand carrying an automaticrifle.Theywere sentenced toconcurrenttermsof 9and 7 years' imprisonment. They appealed against conviction and sentence. Before opening his appeal, counsel for the appellants invited 5 the Court to direct the numerical strengthening of the appellate bench charged totry thecase, ordirectthatitbe tried by the Full Bench. Inthe submission of counsel the enlargement of theconstitutionof theCourtiswarrantedbytheimportanceof one of the issues raised on appeal, namely, the competence of the 10 AssizeCourttoreviewthelegality andvalidity of warrantsof arrest and search inthecontextofthe derminationof theadmissibility of evidence recovered orthatemerged as aresult of theexecution of the warrant. The opening statementof counsel for theappellants accurately 15 depicts the reasons justifying, in his opinion, the numerical enlargement of thebench: •Mr. Pourgourides: I would like tobe putonrecordthatmy trust to the Bench of this Court is full and without any reservation whatsoever. But I believethatthematterraised in 20 this appeal as far as the question whether the validity of a search warrant or a warrant of arrest can be challenged exclusively by reference to the evidential material placed before theCourtisavery serious pointand onewhich occurs inalmost every singlecriminalcase.Thisistheonlyreason for 25 Ibelieve thaton this issue the inferior courts need guidelines and Ibelieve that guidelines of this nature are preferable if they are given by the FullBench of this Court » The decision of the Supreme Court in Hadjisawas* decides, thatanappellate bench of theSupreme Courtset upunders.11
(3)30 of the Administration of Justice (Miscellaneous Provisions) Law 1964 (Law 33/64) has competence to direct the enlargement of theconstitutionof theappellatebenchcharged totrythecase, ifof opinion thatthis is necessry inthe interestof justice inview of the importance of one or more of the issues raised on appeal. Aside 35 from acknowledging jurisdiction to the Court of Appeal to direct theenlargement of itsconstitution,noattemptwas madeto define *(Hadjisawasv.Republic
(1986)2 C.L.R.154 (majorityjudgment}). 166 2 C.L.R. 5 ΑΙ-Hamad v. Police Plkls J. the circumstances inwhich theinterests of justice are best served by the tnal of an appeal by a numencally enlarged appellate bench The application for the numencal strengthenng of the bench in the case of Hadjisawas was, it must be noted, abandoned after the ruling ofthe Court recognising junsdiction Therefore, the Courthad noopportunity toexamine whether the issues raised m that appeal justified itsheanng byanappellate division compnsing moreJudges than three Counsel for theRepublic didnotfor his part contestthe 10 application leaving, inhiswords, thematter« ..tothediscretionof the Court whether, in the circumstances ofthe present case, the expansion of the bench allowed by the majonty judgment in Hadjisawas case, is inthe interests ofjustice in thepresent case» Like his counterpart, counsel for the Republic did not trace any 15 decision ofthe Supreme Court directly addressing the question whethertheAssizeCourthas competencetoreviewthelegality or validity of the judicial warrant of arrest or search Theonly decisions onthesubject emanatefrom AssizeCourtsadopting the view thatnojunsdiction lieswith theAssize Courtto examine the 20 validity of judicial orders pertaining tothe issue of warrantsof arrest or search Inthe case here under appeal the AssizeCourt was, itappears of the same opinion. Our research, too, confirms that the issue here under consideration, has not been the subject of a directjudicial pronouncementinany previous decision of the 25 Supreme Court However, arecentdecision of the FullBenchof the Supreme Court has abearing and throws light on aspects of thequestion underreview Counselcould nothave been aware of itas the decision has notbeen reported. Itisthe case of Ellmasν Republic *Oneof theissuesraised inthatappealwas whetherthe 30 Assize Court had junsdiction toreview the validity of an order committing the accused for tnal before the Assize CourtThe learned Presidentruled, incertioranproceedings for the quashing of the order of the Assize Court declining junsdiction, that the Assize Court had no junsdichon On appeal the following was 35 said** « A judicial order can only be reviewed in eitheroftwo ways(a)By way of appeal when a nght of appeal isbestowed by it, or * (Notreportedyet) ·* (Judyt, r t·· Uts,J, ivitf·whichMalachtosand Koums, JJ concurred) 167 PlklsJ. ΑΙ-Hamad v. Police
(1988)(b)by way of certiorari. ** Both jurisdictions vest exclusively in the Supreme Court; appellate jurisdiction and jurisdiction to issue prerogative orders vests exclusively in the Supreme Court in virtue of para. 1 and para. 4 of article 155 of the Constitution, 5 respectively.» Mr.Pourgourides appropriately drew ourattentiontoanumber of English cases* illuminating the practice of the English Courtof Appeal pertaining totheadhocenlargement of theconstitutionof an appellate bench.They indicatethatthiscourse maybe adopted 10 whenever one or more of the issues raised on appeal are of exceptional importance or complexity or for the purpose of clearing ground riddled with conflicting precedent. We also considered it appropriate to direct our attention to developments affecting thepracticeof theEnglish CourtofAppeal 15 in this field, following the enactment of the Supreme Court Act 1981** and the Court of Appeal (CivilDivision)Order 1982.*** These enactmentsmake provision fortheconstitutionof appellate divisions of the Court of Appeal comprising two instead of three Judges, which isthe norm,for thehearing of certaincategories of 20 appeals (mainly appeals from interlocutory orders).The Courtof Appeal has residual discretion to direct the enlargement of the constitution of the Court to include three members, on the application of theparties,orontheinitiative of theCourt-Practice Note of the Courtof Appeal.**** As explained inthePracticeNote, 25 one of the reasons for which the constitutionof the Courtmay be numerically strengthened, is the likehood of the two Judges disagreeing. Evidently, no possibility of a stalemate exists in the case ofabench of threeJudges. Itmustbe appreciated thata twoJudge division of the Courtof Appeal in England, isan exception 30 tothegeneral rule;whereas inCyprus abenchset upunders.11
(3)of Law 33/64 is the natural forum for the hearing and determination of appeals. In thePracticeNote itis explained thata strengthened division ' (R ν Taylor
(1950)2 All ΕR 170. R ν Nesome
(1970)3 All ΕR 455, Poole ν Regina, 1960EastAfricaReports,ρ 62) "(s54
(4)) •••(SI 1982/543) · " ·
(1982)3 AllΕR 376 168 2 C.L.R. 5 Αϊ-Hamad v. Police Plkis J . of three Judges may be directed (where the law permits a constitution of the Court of Appeal by two Judges) if the appeal raises issues « of such complexity or general importance that a three-Judge Court is desirable » Addressing himself to the circumstances underwhich athree-Judge Courtmay be directed, Ackner, LJ,m Wandsworth London Β C ν Winder* stressed the general importance of the case as a consequential factor, as well as the complexities of theissuesraised for determination The importanceof a case,itscomplexity and factors relevant to 10 the desirability of directing an enlarged constitution of the Court are, as it emerges from the above, very much matters for evaluation by the Court. Whether an enlarged bench will be directed isultimately a matterof discretion for theCourt Although there is no decision of the Court beanng directly on 15 the relevant issue raised on appeal, the decision in Ellmas, supra, isindicative of theframework of the powers of theAssizeCourtto review orders made by Judges of the DistnctCourt. Certainly, we shall notpause atthisstage toconsider the impactor implications of the above decision on thesub judice issues in this appeal Nor 20 do we overlook a long line of English precedent acknowledging greater freedom to the Court of Appeal to depart from previous decisions whenever they areconsidered wrong and thedeparture is one favounng the accused The decision in R ν Gould** highlights the extent of thisfreedom 25 30 35 «In its cnminaljunsdiction, which it has inherited from the Court of CnminalAppeal, theCourtofAppeal doesnotapply the doctnneof stare decisis with thesame ngidity as initscivil junsdiction Ifon due consideration we were tobe of opinion that the law had been either misapplied or misunderstood in· an earlier decision of this Court,or its predecessor theCourt of CnminalAppeal, we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding thatthecase couldnotbe broughtwithin any of the exceptions laid down in Young ν Bnstol Airplane Co Ltd. .»·*· •11984)3AIIER 83 106 ••{1968)1 AllΕ R 849 851 ·» (See also.R ν Spencer
(1985)1All ΕR 673. R ν Howe
(1986)1All ΕR 833 The implicationsofthe doctnne of bindingprecedent mCypruswerereviewedin Demetnades ν Republic
(1977)3CLR 213) 169 PiLieJ. ΑΙ-Hamad v. Police
(1988)We are disinclined to lay down any hard and fast rules or, indeed, attempt to define comprehensively the circumstances under which an appellate bench may be numerically enlarged. Thepracticeof theSupreme Court,incapitalcases,* was thatthey should as a rule, be heard by the Full Bench or an enlarged 5 appellate bench, no doubt because of the irreversible consequences that the outcome of the appeal might have on the life of the appellant. Astrengthened bench may be ordered if the legal issue is highly complex and the pooling of judicial resources is likely to contribute to its elicitation.** To this list one may 10 contemplate the constitutionof a strengthened bench when legal propositions atissueare theobject of directly conflicting decisions of the Supreme Court. Inexercising ourdiscretion whether toordertheenlargementof the constitution of the Court, it must be appreciated that every 15 issue affecting the rights of thesubject is important,as, indeed, is every issue concerning the administration of justice. The enlargement of theconstitutionof the Courtmay be ordered only when the issues raised are of extraordinary importance, either because of their repercussions upon the litigants or wider 20 repercussions on the administration of justice. Again the importance of the issue in theabove sense may notbe decisive if the issue is of a legal nature and has been the subject of authoritativejudicial pronouncements.We reiteratethatthethreeJudge bench constitutedunderLaw33/64, isthenaturalforum for 25 adjudication on appeal. Any departure from this norm must be stnctly justified, so much so,thatintheend, itmustappear tothe Court that a numerically strengthened bench is necessary in the interests of justice. The competence of theAssize Courtto inquire intothevalidity 30 of warrants of arrest and search is, no doubt, a very important question requiring careful consideration. On the other hand, the issueis notone of great complexity. Furthermore,some aspectsof itare illuminated by the decision in Ellinasthough, we repeat, we have purposely refrained atthisstage from assessingitsimpacton 35 the issues raised in this appeal. Inthe end we are not persuaded * (Thedeathsentence forpremedidated murderwasabolishedbyLaw86/83 also.see.Pohtis ν Republic,
(1987)2CLR.116. "(See, Orphamdesν Michaehdes
(1968)1CLR 295) 170 2 C.L.R. ΑΙ-Hamad v. Police Plkls J . that itisnecessary todirect the enlargement of the constitu.ionof theCourt The appeal is,therefore, fixed before usforheanng on6th and 7th December, 1988 Application refused 171