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The jurisdiction of the District Court to issue “venire de novo” order

 

Another success of our office is the recent subversive decision of the District Court of Nicosia in the context of the Foreign Application 503/2016 between XXX HALL e.a v XXXX ELIA e.a, dated 16/7/2021, regarding a request for retrial ("venire de novo") of an application for contempt of a Court order. The Court, upon reviewing the relevant case-law and taking into account the facts and circumstances of the case, dismissed the request for venire de novo, adopting the arguments of the Applicants in the Foreign application, represented by our Office.

 

Upon a hearing of the contempt application before the President of the District Court of Nicosia, the Court concluded on the Guilt (“decision on the Guilt”) of the Respondents, issued a relevant decision and further it set the case for facts and punishment. After numerous adjournments for which the Respondents were fully responsible of and upon the replacement of the Judge, who rendered the decision on the Guilt, the Respondents requested, from the new Judge, namely PDC Mr. Philippou, a retrial of the contempt application.

 

The Judge, after a brief review of the background of the proceedings and the legal nature of the Contempt Application, adopted the arguments of the Applicants' Lawyers in relation to the lack of jurisdiction of the District Court to issue a "venire de novo" order. In particular, the Court found that there is no legislation providing for the jurisdiction and power of the court to issue a venire de novo order.

 

In the Criminal Procedure Law Cap155, Article 3, it is clearly stated that in the absence of a legislative provision in Cyprus, the existing English Law shall apply. The Court applied the Article 53 of the Senior Court Act 1981 and concluded that only the Supreme Court acting as the Court of Appeal has jurisdiction to issue a venire de novo order (R V Stromberg [2018] EWCA Crim 561). Our office relied on the decision R V Stromberg [2018] EWCA Crim 561 which the Court adopted stating that, if the District Court issues an order for retrial of the Contempt Application, it would function as the Court of Appeal of the Judge who issued the decision on the Guilt of the Respondents.

 

With reference to HALSBURY'S Laws, the Court distinguished the cases where there is a trial with the presence of Jury where a change in the composition leads to a retrial of the case and a trial by a Judge without Jury where the tendency is to save the proceedings and continue from where the proceedings were left. The Court then adopted the English case-law set before it by the Applicants' Lawyers, concluding that the case in question is distinct from Coleshill v Manchester Corporation as it is not a case involving jury. In addition, referring to the special circumstances of the present case, he stated that in this case the hearing procedure has been completed, witnesses have been heard and an extensive decision has been issued. The impression of the Judge as reflected in the authentic examination and cross- examination of witnesses cannot be ignored or repeated, while in case of retrial of the application, the issued decision would be used for the preparation of the testimony of the Respondents.

The aforementioned issue was handled by Mrs Anna Lamprou, Christodoulos Neophytou and Kyriakos Pittas, lawyers of our office.

 

 

 

 

For further information on this topic please contact

Mrs. Anna Lamprou( alamprou@pittaslegal.com ) at SOTERIS PITTAS & CO LLC,

by telephone (+357 25 028460) or by fax (+357 25 028461)

 

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advise should be sought about your specific circumstances.