Last update: 10-Dec-2013 1:42 am
Tuesday, December 10, 2013
Trinidad & Tobago Guardian Online
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Attorney slams slow delivery of justice: Judges afraid of scrutiny by Court of Appeal
Attorney Wayne Sturge is accusing judges of being part of the problem of the slow delivery of judgments in the outdated criminal justice system. He said judges are afraid to deliver timely judgments because they do not want to face the scrutiny of the Court of Appeal. Sturge noted that even the Court of Appeal gets it wrong a lot of the time and is corrected by the Privy Council.
Sturge, who is in favour of decriminalising marijuana, also makes a strong case for retaining the jury system even though Chief Justice Ivor Archie has an opposing view.
Q: Mr Sturge, I gather you have some beef with the delivery of criminal justice in T&T. In a nutshell, exactly what are you speaking about?
A: (In the office of another attorney in Port-of-Spain last week) I think we have a problem with management at the administrative level. I am not questioning the competence of the judicial officers in terms of their ability to do judicial work, and I think the judiciary is suffering from bad management.
For years we have been hearing of this delay in the efficient delivery of justice. What’s responsible for this troubling position?
(Crossed legs with one hand scratching his left ankle) Well, we have to say thank God we have a low detection rate, because if they had a higher detection rate the system would have collapsed already. We have a high degree of criminality so we have an avalanche of cases in a system that is outdated.
You are saying with a straight face, Mr Sturge, that this abysmal detection rate has some positives?
It has a lot of positives, and if we had a rate of 30 to 40 per cent (cynically chuckling) I don’t know how the system would make out, unless people pleaded guilty en masse.
You have been a practitioner for the past 15 years, and in terms of you being an officer of the court (a title attached to all attorneys), how does this grab you?
Justice should be swift, particularly with violent offenders and the people (defendants) using the criminal justice system.
This cancer, as it were, is it found in both the civil and criminal courts?
No. The civil courts are run much more efficiently since the introduction of the civil proceedings rules.
So you do agree with the Chief Justice’s assertion on Monday last that the criminal justice system is in crisis?
Oh yes. And it has been for a long time. For example, last year one court in San Fernando did just two cases for the entire year. This year a matter began on February 1 in the Port-of-Spain First Assizes; it lasted eight months. So that court, for the entire year, did one matter. And we also have the situation where defendants charged with criminal offences generally prefer to delay the start of a trial for as long as possible.
What about the often repeated charge that criminal defence attorneys deliberately delay the determination of cases in order to obtain larger fees from their clients?
Well, both prosecutors and defence lawyers contribute to delays, and some lawyers are paid on the basis of appearance, and that might facilitate the poorer clients who cannot pay a lump sum up front, so that is a problem which is much more serious than at the magisterial level.
Do you believe that when preliminary inquiries (PIs) are abolished the backlog of cases will ease up?
If we have more courts at the Assizes it will...it is a very ambitious plan, but all it would do if you abolish the PI right now, will be to shift the backlog from the low court to the high court, in the absence of new courts.
Mr Sturge, for a small country like T&T why is it that we cannot lick this severe backlog?
Mr Raphael, go on any day at the Port-of-Spain magistrates court, after lunch, and tell me how many magistrates are actually sitting.
You mean that system where magistrates work half-day still obtains?
Yes. In fact most times they come in, adjourn the list...Couva for instance, I am not afraid to say it. Chief Justice Ivor Archie should go wherever a certain magistrate sits—I wouldn’t call his name publicly—and look at the case load for that magistrate. Look at the productivity of those magistrates and, of course, if people are prepared to plead guilty, that magistrate will deal with it.
But trial, no... Everything is an adjournment. I just used that magistrate as an example, but there are magistrates who for some reason just don’t want to work, and there are others who work extremely hard.
They adopt the culture of some public servants, who just report for duty simply for the salary?
Yes. The chief magistrate and some other magistrates in the city, they work extremely hard, they work for most of the day, while others simply are content to just review the list.
The Chief Justice also spoke about doing away with the jury system?
(Vigorously shaking his head in the negative) I totally disagree with that.
The question is obviously why? Why I disagree with it?
You should give the ordinary man a chance to participate in the criminal justice system because it doesn’t waste judicial time, as that is what we are concerned about. The argument for scrapping this system is that it wastes court time. That is not true, and those who don’t know might believe it.
Let me tell you how time is wasted in court. When you pick the jury and the trial starts, all of a sudden the prosecutor didn’t know that his main witness is out of the country, or that two other critical witnesses cannot be found. Also he wants to lead evidence of bad character, he has to make application for fresh evidence, and he has to make applications for hearsay evidence to be admitted.
What’s the point?
All of this should have been done before the trial. So all of a sudden he realises he has all these applications to make which cannot be made in the presence of the jury, and they take a period of days. So when you have all these applications being made, whose fault is it, the jury’s or the prosecutor’s? What I agree with is that you shouldn’t have a jury trial for all matters. You don’t need to have it for the simple possession of marijuana.
If you have such simple answers to dealing with issues which bug the criminal justice system, why isn’t it that easy to alleviate them?
(Cupping the right side of his chin and cheek) Your guess is as good as mine, because some of the ideas I have, they know of and some would be common sense. Every year you would hear about talk shops, panel sessions and how we should change things…but they have never changed it.
I heard you yesterday morning on television making some disparaging remarks about judges.
No. Not all. That is a wrong interpretation of what I said...
Didn’t you say they were afraid to make decisions because…?
What I said was that they are afraid of the scrutiny of the Court of Appeal...
So they are reluctant to deliver timely judgements?
They simply want to get it (judgements) right, and they exercise an extreme amount of fear. What you need to realise is that when you make a mistake, it doesn’t mean you are incompetent. It simply means that three other more experienced judges have a different view, and even in the Court of Appeal a lot of the time they get it wrong and the Privy Council have to correct them.
Because of this position of getting it right the first time, aren’t the judges part of the problem?
They are part of the problem, but…
Mr Sturge, are you sure you don’t want to reconsider that response?
(Unhesitatingly) No. I wouldn’t. We are all part of the problem; the lawyers, including myself, the prosecutors, I wouldn’t lie. In most cases my closing speeches are three or four days, I would also cross-examine witnesses three or five days for most cases, and I have a colleague who cross-examines witnesses for 19 days. But we do it effectively.
Perception they say is reality even though I do not subscribe to that maxim. But isn’t there one justice system for the rich and another for the poor clients?
That is why you should have jurors, because if you look at cases like Brad Boyce— never mind former judge Herbert Volney saying he made a mistake—you do have a number of cases where people of a certain ilk do not face justice. And if they don’t, then there is a perception that the system works for them and it doesn’t work for the ordinary man, and I am certain that if Brad Boyce had been sent to the jury he would have been convicted.
Finally, Mr Sturge, what’s your prognosis for the future of the justice system?
I think at present we are going nowhere fast, and we have to make certain changes now rather than later.
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