| IN
THE |
MATTER
OF AN APPLICATION BY RUDOLPH MOSES OF NO. 3124 BENBOW
STREET, BELIZE CITY, BELIZE, ELECTRICIAN, FOR ORDERS OF
CERTIORARI AND MANDAMUS |
|
AND
|
| IN
THE |
MATTER OF CRIMINAL PROCEEDING IN THE MAGISTRATE COURT
BETWEEN P.C. 510 TERRY AND RUDOLPH MOSES. |
Supreme
Court
Action No. 58 of 1982
8th March 1982
Alcantara, J.,OBE
Application
for leave to issue mandamus and certiorari against magistrate
for refusing to accede to an adjournment in a partly heard
case to suit the convenience of counsel - Convenience of
counsel never a good ground to seek an adjournment - Only
convenience of accused person to be taken into account -
What constitutes convenience of accused person for purposes
of seeking an adjournment.
J
U D G M E N T
This is
an application for leave to issue mandamus and certiorari
against a magistrate on his refusal to accede to an adjournment
in a part heard case.
Mandamus
does not apply. Certiorari might. What is the complaint?
The complaint is that Counsel appearing for an accused was
not granted an adjournment to suit his convenience. So what?
The granting
or refusing of an adjournment is entirely at the discretion
of the presiding judge or magistrate. A Superior Court will
not interfere in the exercise of this discretion unless the
discretion has been wrongly and manifestly exercised.
In this
case the adjournment was for the convenience of Counsel in
the sense of his other commitments, not for the convenience
of the accused. The convenience of Counsel is never a good
ground for an adjournment, although a Court might be persuaded
in certain circumstances to grant it. The legal profession
will not take kindly to this ruling, but I am being forced
to spell it out to make the position clear. The convenience
of the accused invariably is when the ground is illness, inability
to attend or producing further evidence.
This is
not a right, but a matter of practice. In fact the law is
very much stricter. See the case of R. v. Lipscombe, Ex
parte Biggins (1862) 26 J.P. 244 referred to in Stone's
Justices Manual (1974) at p. 67 which decides: "A
Defendant cannot claim an adjournment as a matter of right
to enable him to obtain professional assistance."
On the
face of it the rights under the Constitution have not been
infringed. Section 6 provides what the common law already
provided, nothing more, and certainly not the right to adjourn
for the convenience of Counsel, but on the right to be represented
by Counsel.
Leave
is refused.
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