Tuesday, February 20, 2018

And after Section 34?


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While we all know that Section 34 was repealed what has not been addressed publicly, is what becomes of the rest of the Administration of Justice (Indictable Proceedings) Act 2011 which was intended to deal with abolition of preliminary enquiries. The same proclamation that brought Section 34 (and three other minor sections) into effect also provided that the rest of the Act will come into effect on January 2, 2013.

In his address at the opening of the Law Term the Chief Justice stated that all efforts would be made to put measures in place to facilitate the law coming into effect. From my information very little has as yet been achieved and therefore the Act cannot now be implemented.

The Act is intended to repeal and replace the Indictable Offences (Preliminary Enquiry) Act, and to "provide for a system of pre-trial proceedings relating to indictable offences and other related matters". The old system whereby a magistrate would hold an enquiry, hearing evidence into an offence, such as murder, and then decide whether to send the accused up for trial in the High Court is to be abolished. It will be replaced by something called a sufficiency hearing where no evidence would be heard before the accused is sent to trial before a judge and jury.

The Act establishes the post of a "Master" of the High Court who would have powers (as do magistrates) to issue search warrants and receive complaints where an indictable offence (serious criminal offence) has been committed. A person who is charged for such an offence will be brought before a Master who will conduct something called an "initial hearing". This is simply the process whereby the accused is, among other things, informed of the charge.

At that time the Master will also make a Scheduling Order specifying the date on or before which (i) the accused must retain an attorney-at-law; or when (ii) an order for legal aid must be satisfied. The order also requires the prosecutor to file in the High Court and serve on the accused all witness statements and other documentary evidence that he intends to use at the sufficiency hearing. All the evidence the State intends to call must be in a form fit to be filed within three months of the person first appearing before the court.

A major change in the law is that it now puts the onus on an accused to file in the High Court and serve on the prosecutor any witness statements and other documentary evidence that he intends to use within 28 days after he is served by the prosecutor. Thus a person who is being tried in the criminal High Court must now disclose the names of his witnesses and their statements to the prosecution. Under the still-existing law an accused can keep his defence and the names and evidence of his witnesses to himself and surprise the prosecution at trial. The new procedure will be akin to what operates in civil trials.

After all of this is done within 28 days a "sufficiency hearing" is held by the Master. This hearing is to determine whether there is sufficient evidence to put the accused on trial for an indictable offence. This is usually done in less than a day and at the hearing the Master reviews the witness statements and other evidence and hears any submissions from the prosecutor and the accused.

If the Master finds that based on all of the evidence a jury, properly directed, could return a verdict of guilty of any offence the Master shall order that the accused be put on trial for that offence. The case is then listed for hearing at the High Court. The Act provides that in general an indictment by the DPP must be filed within 12 months of committal for trial.

It is clear, therefore, that the Administration of Justice (Indictable Proceedings) Act was intended to effect sweeping changes in the administration of criminal justice to remove the cumbersome two-tier process involved in jury trials that was costly, not just in terms of court resources but also in legal expenses. More significantly, the new procedure will lead to much quicker disposition of serious cases.

This system could only work, however, if there are Masters appointed to the criminal courts. So far there are none. The system also requires more resource persons at the prosecution end to ensure that all witness statements and other documents are prepared properly and in a timely fashion to meet the deadlines in the legislation. As far as I am aware no additional staffing in the form of lawyers or paralegals have been provided to the Office of the DPP.

Furthermore, the Act details the conditions that witness statements of the prosecution must satisfy if they are to be admitted as evidence. For instance, a signed original statement must have been recorded by a police officer or by the witness; a typewritten copy of the original statement must be attached to the original statement, where the original statement is handwritten; the original statement must have been sworn to before a Justice of the Peace and authenticated by a certificate signed by him. These are among some of the requirements which would change the way the police currently operate when taking witness statements during the course of their investigations.

As far as I am aware nothing significant has been done to make the Act operational whether in the creation of new posts (Masters); additional staffing in the criminal justice arena; the training of the prosecutors and the police or above all in the making of detailed Criminal Proceedings Rules to give effect to the legislation in a practical fashion. The full Act was said to be coming into effect on January 2, 2013. Will the authorities only realise this weekend that this is totally impractical?

* Dana S Seetahal is a former Independent Senator