Two years after government passed legislation to clear the way for paper committals, plea bargains and gathering evidence by audio visual link, the laws are hardly being used and some attorneys believe that implementing structures are needed.
Plea deals are being discussed and, in some cases, accepted by the state, making it the only one of the three laws which is being used with some regularity.
In the first and only known court application for the alternative use of paper committals, Magistrate Dale Kingston had denied the state’s request in April 2009, noting that full and detailed guidelines were required for the procedure to be adopted. Recently, Justice Roxane George granted an order for evidence to be taken by audio visual link in an Amerindian land rights case; it would be the first time the law is being used. Prior to this, an attempt was made by attorneys for Roger Khan to have evidence gathered in Guyana by audio visual link and used at his US court trial. “They are not being used in the manner in which Parliament expected them to be used…and they may need more than an infrastructure to implement them,” PPP/C MP and attorney Anil Nandlall said of the suite of legislation.
Nandlall said the laws are fundamental procedures which were passed to speed up the dispensing of justice, but he is of the opinion that a programme needs to be done to acquaint magistrates and members of the bar about the legislation.
According to him, many lawyers and magistrates are unaware of the existing laws but this could be remedied by a sensitization programme. He said that the judiciary could spearhead the process in a joint effort with the Bar Association. “…We could have an engagement that involves all the stakeholders and a comprehensive and workable approach could be ironed,” he added.
But Attorney General Charles Ramson said magistrates ought to be aware of the existing statutory provisions which makes the legislation binding. He charged that those who are aware but are not complying with the laws are “not sufficiently mentally-skilled”.
Ramson said that some magistrates appear to be suffering from an inertia that is unprecedented, stating that there is nothing more his Chambers could do to enforce the legislation. The judges and magistrates ought to enforce the law, he stressed. “A magistrate cannot refuse to observe legislation that is in effect; whatever may be their concerns about the implementation process they have to contrive to put the legislative provisions in effect,” Ramson said.
Specifically addressing the gathering of evidence by audio visual link, Ramson said it came up during an ongoing High Court case involving attorney Nigel Hughes but according to him no order was granted for the evidence to be taken. Hughes has since insisted that the order was granted two weeks ago saying he has it in hard copy for confirmation purposes.
“The judge must be mad…I am defending this matter and whatever order is made by any judge I will know what I have to do,” Ramson said. He continued that Hughes had applied by way of a contrivance for the order to be granted, adding that at no time did the lawyer lay the foundation for it.
Under the Evidence (Amendment) Bill 2008, provisions would be made for enabling evidence to be taken by audio visual link.
Hughes said he has managed to secure the order to gather evidence by audio visual link from a witness who is in the United Kingdom. He explained that Professor Audrey Butt Colson of Oxford University, UK has agreed to give evidence in the Akawaio and Arekuna Amerindian land rights case from the Upper Mazaruni District—Van Mendelson v the Attorney General.
Hughes said the professor travels infrequently due to her age and as such he applied for the order, which was granted two weeks ago. The order clears the way for the evidence to be taken on February 14 and February 21, 2011. Hughes said that the Guyana Telephone & Telegraph (GT&T) has agreed to establish the link. “We will actually have live testimony…we have monitors in the courtroom, she will have a monitor and a screen over there,” he said.
Hughes hailed the audio visual provisions as “extremely useful.” He said the criminal justice system has been plagued by countless adjournments to facilitate witnesses coming in from overseas. However, he said an audio visual link is all that is required to take evidence. “In this age of computers and Skype we could take testimonies in a cost effective way,” he added
In relation to the gathering evidence by audio visual link, Nandlall said a case has to present itself for this legislation to be used. He said a particular case is needed for the law to be applicable, but he noted that “it’s good we have it in the legal armoury.”
Attorney Vic Puran told this newspaper that he was one of two lawyers who made applications on behalf of Roger Khan for evidence to be taken by audio visual link. However, he said, the “mechanics to do this was not in place at the time.”
According to Puran, the judge had favoured the application but they were unable to find a means to get it done. He said GT&T was willing to set up the link, but “everything did not come together for us.” In the end, the attempt was aborted.
Puran also referred to the new law as “cost-saving one,” adding that it will save time and money in instances where people cannot travel to give evidence in a trial.
The Criminal Procedure (Plea Bargaining and Plea Agreement) Act makes arrangements for the Director of Public Prosecutions (DPP) or any prosecutor, police prosecutor or attorney authorized by the DPP and the accused to enter into a plea agreement. The law seeks to reward a person who has entered into a plea agreement and is cooperating with law enforcement authorities or whose cooperation is beneficial to the administration of criminal justice.
Puran has disclosed that two of his clients successfully entered into plea bargain arrangements with the state and were fined $400,000 each. The women, Brittany Shand and Tanya Mohamed, agreed to turn state witness in a narcotics trafficking case and got the deal in return.
Puran has argued that in the absence of sentencing guidelines plea bargaining arrangements will suffer because, according to him, “clients do not want to bargain without knowing what they are getting.” He stressed that this is the problem.
He said that the resistance of the Attorney General to sentencing guidelines means that the judiciary is left without any assistance from Parliament. “No one wants to go into a plea deal arrangement without knowing what they are going to get in terms of a sentence… this is left up to the discretion of the judge,” Puran stated.
According to Puran, Director of Public Prosecutions Shalimar Ali-Hack is keen on plea bargaining but her office is not empowered by the law to determine sentences. This, he said, poses the problems.
For his part, Hughes recalled that there was great speculation in the Polar beer fraud case that one of the witnesses was likely to turn state witness in exchange for a plea deal, but he said this is yet to materialize. “I represent several of the defendants and I heard this indirectly, but nobody spoke to me,” he said. The speculation to which he referred had involved Fidelity Investments Director Joshua Safeek, who was cleared of all related charges in the Polar beer case. There were reports that Safeek had agreed to testify for the state after the President had announced that a deal had been struck with someone related to the case.
On this issue, Nandlall said that lawyers are using plea bargain, but “not with the frequency that they ought to use it.” He referred to the chronic delay facing the local system, saying that initiatives like plea bargains, mediation and reconciliation are implemented to ease the burden. He recalled his own attempts to secure a plea deal for one of his clients, saying it eventually failed to materalise.
The Criminal Law (Procedure) (Amendment) Act, which is the paper committal law, vests in magistrates the power to commit accused persons to stand trial in the High Court if a prima facie case is made out based on statements, documents and other articles tendered to the court, in the absence of a witness.
Hughes argued that the law governing paper committals is problematic on two fronts: the fact that it does not allow the defendant to be heard, and that it will only add a volume of cases to a system that is already struggling with a heavy backlog. “With the paper committals you are simply moving the backlog from the magistracy to the door of the High Court. There is no way that judges can do more with the present complement…they need to increase the number of judges,” he opined.
Puran referred to the law as having “technical difficulties” while noting that Magistrate Kingston had outlined what the problems were. He said that magistrate would have had a good sense of the issues, adding that they need to be addressed.
The issue, as noted by the magistrate, was what guidelines should be adopted for the receipt of evidence−the statements, documents, writings and other articles−before they were inventoried in paper committal proceedings. In her ruling, Magistrate Kingston disagreed with the argument advanced by the state that the new law had some gaps which she had to fill, saying that as a creature of statute she could only act in accordance with the powers given to her by the statute.