Paper committals – A method of reducing the backlog

The compelling need for a more efficient system of hearing and disposing of serious criminal matters cannot be overstated. Delayed trials are an egregious violation of a citizen’s constitutional right to a trial within a reasonable time. The Camp Street prison – built for 150 persons, adjusted to hold officially 630, currently has a population of 1,030. Of these 1,030, 386 are convicted, 483 remand prisoners, 56 appellants and 190 awaiting High Court trials. The 483 remand prisoners include those with pending trials in the Magistrate’s Court or preliminary inquiries (PI) for serious criminal matters.

This article addresses delays in trial for serious criminal matters tried on indictment before a judge and jury in the High Court. Before a High Court trial is conducted the accused person has to undergo a PI before a magistrate. Some types of criminal matters can be tried both in the High Court and may, at the magistrate’s discretion, be heard in the lower Court. This latter category of criminal prosecutions – so called “hybrid offences” or “offences triable either way” exists because the circumstances of an offence may be less or more serious although by definition it is the same offence. The more serious indictable matters cannot be taken summarily including certain sexual offences and those relating to unlawful killings – murder and manslaughter, etc. In respect of those offences, a PI must be held.

At the PI the magistrate must satisfy himself or herself that the evidence led by the prosecution discloses a prima facie case, such that a reasonable jury, properly directed may convict. The method of taking and recording evidence in our jurisdiction is that the evidence is given orally by the witnesses and recorded in long hand by the magistrate in a deposition. If the magistrate finds a prima facie case made out, the magistrate commits the accused for trial.

In essence, the accused then joins a queue awaiting trial at the next convenient sitting of the criminal jurisdiction of the High Court. In practice the accused’s matter does not even become considered for the assizes until the magistrate’s longhand depositions are typed by the court staff.

A PI has to be accommodated in amongst the magistrate’s other functions – summary civil matters, summary and hybrid criminal matters, other preliminary enquiries, inquests and other statutory and administrative functions. It is also subject to the exigencies of the police prosecutorial system and defence counsel’s schedule and the vagaries of the summary environment.

It is not unknown for a PI to take more than 5 years.

There are no time limits for the clerical functions of transforming longhand depositions to a typed document and this opaque, unaccountable process can take anywhere from a few weeks to years.

The Criminal Law Procedure (Amendment) Act No 17 of 2008 introduces a system which is known in other jurisdictions as paper committals. Witnesses’ statements and documentary evidence are tendered to the Court without the witnesses being present, inventoried and marked as exhibits.

On the basis of these written records the magistrate forms the opinion whether there is a prima facie case made out sufficient to put the accused person on trial for the offence charged. The magistrate may consider submissions from counsel that there is insufficient evidence or allow the cross examination of witnesses before making his or her decision whether to commit for trial. Magistrates are not expected to allow cross examination ad nauseam as this would defeat the purpose of the Act.

The Criminal Law (Procedure) (Amendment) Act is remarkably short and issues have arisen whether the Magistrate should have more guidance in the form of regulations with appropriate safeguards to ensure the fairness of the process.

The contrary argument has been advanced that the absence of regulations does not mean that the Act should not be followed immediately by the courts. In recent weeks there have been efforts made in several pending matters to have the courts use the Act.

Hopefully greater clarity emerges whether by evolution of practice, judicial pronouncements or the legislature so that the uncertainties are resolved and the old style PI committal proceedings are relegated to history.

Interestingly, whilst the paper committal system has not yet been fully adopted in practice, the Sexual Offences Act No. 7 of 2010 proscribes in the First Schedule detailed regulations for the conduct of paper committals in offences created by the Act.

This appears to have been embraced more readily although there are some concerns – as with any new system – about the meaning of certain provisions. Of particular concern is the admissibility of otherwise inadmissible documents, how to treat hearsay evidence in witness statements, the extent of cross examination by the accused and/or Counsel and the right of the accused to put forward evidence in his defence.

The Minister of Legal Affairs may wish to consider inviting the new Parliament to extend the regulations under Sexual Offences Act to other indictable matters. This may eliminate the air of timidity in non-sexual committal proceedings and provide desirable consistency in all committal proceedings.

The two judges sitting in the Demerara assizes dispose an average 8 matters per sitting. There are 4 statutory sittings per year. Given 190 remand prisoners awaiting trial and a significant number on bail, an increase in the rate at which committals are effected demands that High Court’s capacity in the criminal assizes also be addressed.

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