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Slow pace of justice haunts legal system

Published: 
Thursday, September 15, 2016
Chief Justice Ivor Archie, right, flanked by Justice of Appeal, Allan Mendonca during last year's opening of the law term

ROSEMARIE SANT
DEREK ACHONG 
SASCHA WILSON

The opening of the 2016-2017 law term takes place tomorrow and it is expected that Chief Justice Ivor Archie will, for yet another year, detail the positives, the negatives and deliver another wish list of what the Judiciary needs to make the delivery of justice faster. 

But is one of the issues which needs to be addressed the experience of judges who now sit on the bench and the length of time it takes for a criminal trial to be completed?

It is against the law to publicly criticise a judge but one can question a judgment. Now, people who work the legal system are raising their own concerns about the slow pace of justice. 

Some attorneys—speaking off the record—said they believe the criminal justice system “has ground to a halt because some of the judges appointed to the bench lack experience in criminal law.”

Experienced prosecutors, however, defended the judges saying that the criminal law has expanded over the years and now defence attorneys can raise many more points of law than what existed a decade ago.

One prosecutor agreed, though, that some judges were reluctant to rule immediately on relatively simple points of law and allow defence attorneys free reign to cross examine witnesses for days on matters unrelated to the prosecution’s case.

Case management, the prosecutor said, was a matter that left a lot to be desired as defence lawyers and unprepared prosecutors contribute to inordinate delays.

Another major issue, one legal expert said, was the fact that some judges are overly concerned about whether the Appeal Court will overturn their rulings and, therefore, do extensive research before giving a decision on preliminary points.

Another prosecutor said judges should be more concerned about a miscarriage of justice rather than their statistics of completed cases or whether their judgments can be overturned by a superior court. 

Some practitioners called for an end to the jury system, to be replaced by a panel of judges or legally trained people—including magistrates—as there were recorded instances of jury intimidation. One lawyer said the jury pool should be expanded to include experts, retired judges and lawyers. He said the culture of adjournments not only frustrate witnesses but deter them from co-operating because of possible job loss and loss of financial earnings.

Another major problem is the small pool of criminal defence attorneys who, once engaged in a trial, has to put off all other competing matters. There are now more than 700 people awaiting trial for murder and it takes ten years for a murder case to make its way through the system. In some cases, it takes up to three months for a simple trial to be completed.

One senior attorney said he was concerned that “back in the day, when judges managed their lists properly, a case would take a week or two (to be completed) and, in the case of a complex matter, probably a month.” He asks: where did we go wrong?

But a senior retired judge said in an interview  that “one cannot just broad brush the issue, some cases are bound to take longer than others, but you have to be careful that you are really basing your criticisms on the knowledge of the facts of the case.”

“These broad-based criticisms” according to the retired judge “can be very unfair.”

But, in any event, the retired judge said more often than not “delays are outside the court of the judges.” He added that apart from delays in producing evidence there is also a major issue with “tightening up notes of evidence taken at preliminary hearings, which often takes a long period of time.”

He said that more than a decade ago matters were done in such a way that none took longer than three years and every effort was made to clear the backlog; the challenge, according to the retired judge, is “avoiding delays in both the High Court and the Court of Appeal.”

Responding to the criticism that some of the judges lack criminal experience, the retired judge declined comment saying having left the bench more than a decade ago it would be unfair to make such judgments.

Asked whether night courts or even weekend sittings of the courts may be the answer to reduce the backlog in the courts, the retired judge said a pilot project was done but night courts and weekend courts face problems with “the infrastructure, staffing, and security which is going to be cumbersome and expensive.”

If those problems can be addressed, he said, it could be a good idea because it would mean that you getting maximum use of the available resources.

In 1996 a night court—under the tenure of retired Chief Justice Michael de la Bastide—was utilised “successfully” in Arima. But a proposal to institute four other night courts was put on hold by the then Patrick Manning Cabinet because of delay in deciding what legislative amendments were needed to allow for the appointment of part-time magistrates to staff the courts and in determining the terms of service of the magistrates.

More courts needed

Lengthy criminal trials and limited courts continue to be major problems plaguing the criminal justice system. 

Chief Justice Ivor Archie is likely to again cite the issue when he reports on the performance of the Judiciary over the past year at the ceremonial opening of the 2015/2016 law term tomorrow. 

Several senior criminal defence attorneys interviewed by the T&T Guardian said that delays caused by procedural applications during criminal trials coupled with limited courts were to blame for perpetual inefficiencies in the disposal of criminal cases. 

Rajiv Persad, an executive member of the Criminal Bar Association and former temporary High Court Judge, noted that the issue of lengthy trials is exacerbated by the fact that there are only 12 criminal courts in T&T: six in Port-of-Spain, four in San Fernando and two in Tobago. 

“There are a significant number of matters which take months and judges are trying their best to make things work but the situation is that there are a great number of matters before them,” Persad said. 

Persad said that while there 12 courtrooms only 11 were operational over the past year as the Vindra Naipaul-Coolman trial occupied two at the Hall of Justice in Port-of-Spain for its duration.

The trial began in March 2014 and became the longest and most costly in local and regional history when it ended in May this year with eight of the accused men being acquitted. Of the 12 men who initially went on trial for the high-profile kidnapping and murder of the businesswoman in 2006, two were ordered to be retrial, one was killed during a daring prison break, last year, and the other freed at a preliminary stage because of insufficient evidence against him. 

“It is a question of managing resources in trying to deal with these matters. There are a lot of retrial cases being sent back and persons on remand for 10 to 12 years have to be given priority,” Persad said. 

He said there were issues outside the control of the Judiciary that were also crippling the criminal justice system. 

“Many times forensic reports are not ready in time, so it takes two to three years to get exhibits. The 99 vacancies in the Office of the Director of Public Prosecutions (DPP) impacts the system and must be addressed,” Persad said. 

Answering questions at a Joint Select Committee of Parliament on Legal Affairs in March, Director of Public Prosecution Roger Gaspard, SC, stated his office’s lack of financial autonomy had led to severe shortages in staff and even basic office supplies such photocopiers, paper and ink. 

Persad suggested that there be more meaningful and pro-active consultations with stakeholders in order to address deficiencies. 

“There is a real disconnect between what is happening on the ground and in the court. There are committees, but there is no real sense that one is getting problems solved in an efficient manner,” Persad said. 

20 years to clear backlog

Opposition Senator—and one of criminal defence attorneys in high demand—Wayne Sturge, shared Persad’s sentiments over the lack of courtroom resources, adding that at the current rate of trials it would take up to 20 years to clear the backlog of criminal cases which has seen up to 600 people on remand for murder at any given time.

“There is a simple solution: build more courts and retain more judges,” Sturge said. 

Plans were afoot over the past five years to build additional courts across T&T, however, they were put on the back burner due to financing issues and problems finding suitable locations for the new judicial centres. 

Sturge said that as an interim measure a shift system could be introduced at existing courts so that two separate trials could be done in one day. 

Proposing that trials for capital offences be held between 9 am and 1 pm and lesser offences be done after 2 pm, Sturge said: “That way we can get twice the amount of work done. Outside of that the only alternative is to build more courts and employ more judges.”

He said that even with more courts there would be additional problems caused by a pool of criminal defence attorneys in T&T being limited and unwillingness of experienced criminal practitioners to become judges. 

Sturge also said there was need for the urgent implementation of the criminal procedure rules. They are to be implemented in January 2017. The rules, part of the controversial and un-proclaimed Administration of Justice (Indictable Offences) Act 2011, were tabled in Parliament earlier this year.

Similar rules were introduced for civil cases in 1998 and have directly led to greater efficiency in the management of civil trials, lawyers said.

“Judges need to stop applications which could have been made before the trial because when they are entertained during the trial it doubles and triples the length of time it should take,” Sturge said. 

Progress through goodyear hearings

Notwithstanding the issues with courtroom resources, Chief Justice Archie is expected to announce an increase in the disposition of criminal cases over the past year. Last year, the Judiciary recorded a six-year high with 130 cases being disposed of. 

The increase has been attributed to the growing popularity of maximum sentence indications or Goodyear Hearings. 

Under the procedure, accused people who wish to plead guilty and avoid a trial are given an indication of the maximum sentence they would receive if they chose to do so. They are not bound to make the plea after the indication is given.

The hearings are utilised mostly by people accused of felony murder where the mandatory death sentence for murder is waived in situations where death resulted in the commission of a lesser criminal offence, in most cases, robbery. 

New court needed for Sando

President of the Southern Assembly of Lawyers, Imran Khan, said there is an urgent need for a new Magistrates’ Court in San Fernando. During the past year, staff and customers at the court struggled with issues with the dilapidated conditions of the existing building. 

There were issues with pigeon dropping landing on people and security breaches caused by violent outburst from prisons including on incident in which T&T Guardian photographer Rishi Ragoonath was injured as one man attempted to escape custody.   

While Khan said that lawyers in south Trinidad were promised that a new facility was planned, there was no indication when it would be fully functional. He also said his members had been advocating for a branch of the probate registry be opened in the southland.

“We have no option but to go to Port-of-Spain to file documents. Matters against the State are automatically transferred to Port-of-Spain and we have to trek there for the duration of the cases. These are historic things that need to change,” Khan said. 

He added that changes in the criminal justice system were necessary as members of the public have become disillusioned by it. 

“If the system is allowed to crumble and deteriorate people will feel hopeless and believe criminals have more power. We need to stop talking and put things in place to get the system moving faster,” Khan said.

Over the past year, there has also been several complaints over staff shortages at the Family Court. Last Thursday, the T&T Guardian reported that several court users had difficulties in access and making child maintenance payments. The Judiciary has promised to seek approval from the Government to increase staff at the facility. 

The Chaguanas Magistrates Court was also closed and relocated to the Tunapuna Court for the greater part of the year due to poor conditions and reopened for business recently.

Major cases listed for trial

The retrial of sedition-accused Jamaat Al Muslimeen leader Yasin Abu Bakr is among the high-profile cases listed for trial when the 2016/2017 Law Term opens on Friday.

Bakr was charged with inciting others to demand money by menace and endeavouring to provoke a breach of the peace stemming from an Eid sermon at his organisation’s Mucurapo Road mosque in 2005. 

Bakr’s trial four years ago ended in a hung jury after the nine-member jury hearing his case failed to come to a unanimous verdict after deliberating for close to six hours. The T&T Guardian understands that the retrial is scheduled for October, however, jury selection is expected to take several weeks as during the last trial 1,000 potential jurors were interviewed before the jury was selected.

Also on the criminal case list for the Port-of-Spain High Court in the new term is the trials of two groups of men charged with kidnapping and murdering businessman Dr Eddie Koury and real estated agent Gerard Gopaul. Koury was kidnapped in September 2005 and his headless corpse was found in a remote area in Caparo days after his abduction. Gopaul was abducted in July 2005 and his body was found by soldiers at Tram Trail Road St Augustine, 11 days after he was kidnapped.

The trial of three former employees of the Ministry of Foreign Affairs for smuggling cocaine in diplomatic pouches during 2004 is also set to commence this year. 

 In south Trinidad there are 76 criminal cases listed for hearing in the San Fernando High Court including 26 murders, two manslaughters, four attempted murders and six sexual offences. 

Last term saw an increase in the number of criminal matters which were dealt with and concluded in the court. This included three murder trials, two of which concluded with Jason Housten and Kelloy Koon Koon being found guilty and sentenced to hang.

While the other person Roger Greene was freed after ten years in jail awaiting trial for the murder of Dr Ravi Maharaj. Several people pleaded guilty to murder based on the murder felony rule which is when someone engages in an arrestable offence, eg robbery, and a person dies during the commission of that offence. 

In one such matter Nigel “Cat” Roderique, 41, and Wendell “Piper” Simmons, 34, pleaded guilty before Justice Maria Wilson to the 2005 murder of Nigel Allen based on the murder felony rule.

The men admitted to kidnapping, Allen, 32, of Simpson Brown Terrace, Cocoyea Village, San Fernando, who was subsequently killed and buried in a shallow grave. They were sentenced to seven years in jail as after the judge applied the appropriate deductions.

The judge said an appropriate sentence was 29 years but, after applying the several deductions, their sentence was reduced to seven years. There were also several who pleaded guilty after the Goodyear Hearing.

The courts also dealt with several sexual offences, which included David Baptiste being sentenced to 22 years in jail after he was found guilty of raping a 15-year-old school girl in 1997.

Other offences listed for hearing when the new law term opens are: two manslaughter, four attempted murder, eight sexual offences, and destroying trees, among others. 

Across in the lower court the San Fernando Magistrates Court—which is situated opposite the Supreme Court— the staff struggled with the dilapidated conditions and staff shortages.

Earlier this week attorney Subhas Panday expressed hope that more magistrates would be assigned to the San Fernando courts since there were five courts, but only two magistrates. 

In June, because of random violent outbursts—resulting in police officers being injured—prisoners on remand were not brought down to court twice in June because court and process police officers called in sick.

Earlier this year Justice Ronnie Boodoosingh delivered judgment in favour of a PC Bunny Ali, who was injured by a prisoner in the San Fernando Court. 

The judge called for an urgent assessment of all court facilities to ensure proper standard of safety and security in order to protect members of the public, staff, police officers, prisoners and lawyers.

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